La règlementation des contenus illicites circulant sur le reseau internet en droit comparé

CONTAIN II

STAKES OF THE APPLICATION OF THE CENSURE LIKE MEANS OF REGULATION

Internet network is inevitably an ideal vector for the proliferation of illicit contents. Moreover, these contents cause more or less serious damage with the Net surfers who must start judicial actions against the PSI since the true author is too often nonidentifiable. For these reasons, the legislators, European and Québécois, worked out a system authorizing the exercise of the censure in order to limit the presence of the illicit contents on the network and thus to limit the responsibility for the PSI. This censure seemed the solution with the problems. However, it should not be forgotten that the latter requires demanding conditions for application in order to avoid any potential abuse. Indeed, it seems an inadequate and excessive solution for countries which are said democratic and free (Chapter I). There exists, nevertheless, of the palliatives which allow certain adjustments as for its exercise (Chapter II).

CHAPTER 1

THE EXERCISE OF « CENSURE OFFICIAL » : AN EXCESSIVE SOLUTION

The States had to intervene to regulate Internet network by the means of new laws. These laws were necessary since it was necessary to clarify many points and especially, to limit the too great latitude taken by the Net surfers which think, still today that, Internet is a place where all is allowed. However, the right always applied there. The new legislations aim thus to clear up the roles of the PSI, whose functions appear sometimes a little vague. Their roles on the network allow them at least for some, to have undoubtedly a certain control on the contents circulating on their waiter. This possibility of intervening on these messages likely to cause disorders reinforced their responsibility. Indeed, it would seem that from now on, the PSI will become the «judges» or «police officers» of the contents diffused on Internet (I). These extensions of capacities, and more especially the attacks brought to the right to the life deprived by the use of legal» or «official» censure the «, can appear truly necessary and legitimate, even in democratic and free countries (II).

Section I : PSI : « judges » or « police officers » of the contents diffused on Internet

The new legislations worked out a principle of responsibility founded on the trinomial one « to be able- to know- inertia »^358(*) which grants the various PSI of the capacities which can seem surprising for simple people receiving benefits (§1). Moreover, these laws, in spite of their undeniable utility in the explanation of the respective roles of the various speakers on Internet network, are not therefore very satisfactory. Indeed, they comprise many limits and sometimes complicate more than they do not specify (§2).

Paragraph 1 : An extraordinary role for the PSI

The PSI are found in a rather uncomfortable position since the installation of the new legislations. Indeed, the legislators theirs allotted the capacity to judge in a their imposing obligation of reaction^359(*). It would thus seem that these PSI became them « judges of the contents »^360(*) or them « police officers of the networks »^361(*) (A). This new role allows them, thanks to the support of the law, to exert a serious and contrary act with any principle of a free and democratic company, the censure (B). However, drifts and abuses orchestrated by the Net surfers, and more particularly by the young people, justify-they not of such measurements?

A) « judges of the contents » or it « organizes networks »

The new legislations force on the PSI to act as soon as they are informed of the illiceity of contents on their waiter by withdrawing it or by blocking it without any legal intervention^362(*). They must thus appreciate the character sells by auction or not this information^363(*). They replace the judges thus^364(*) or « [see] to confer itself, good liking badly liking, a kind of police role, which is not it [their] »^365(*). However, these people receiving benefits are not able to carry out a legal assessment of these contents, since that does not raise in any manner of their role. Indeed, it is necessary to prove this illicit character and the illiceity is not evaluated in the absolute. It is thus difficult for simple people receiving benefits to establish the border between what is licit and what is not it^366(*). This blur can lead to drifts, even with abuses on behalf of these people receiving benefits whose values personal morals will be requested even implicitly^367(*). For example, they can be brought to remove contents being able to generate disorders with Net surfers whereas a judge would not have can be taken such a decision^368(*).

In spite of that, it should not be forgotten that the presence of illicit contents circulating on Internet network constitutes a problem, in particular for the young people who see a means of voyeurism there and défoulement impressive. The legislators tried to cure it by setting up the suppliers in « judge contents »^369(*). This solution east cannot be not satisfactory, but seen the width of the damage carried out on the network as well by the racist sites as pedopornographic, it seemed necessary to intervene quickly^370(*). The only person who can make the police officer and thus act diligently on Internet is incontestably the PSI. However, it must be framed to decrease the potentials abuse.

The legal authority does not miss completely in this new system. Indeed, the judge will be able to intervene, in particular to put an end to any damage, either by stopping the information storage, or by blocking the access^371(*). Moreover, it should not be forgotten that very often the judge will intervene for « to rule on the adequacy of the behavior of the shelterer to the situation and, lastly, on the licit or illicit character of the data blamed »^372(*). The legal authority thus keeps, all the same, a certain control a posteriori on all that a PSI can carry out on the network.

Consequently, the new legislations transformed the PSI de facto into pseudo critics^373(*). This solution can, at first sight, appear astonishing since the exercise of the censure remains a serious act in a free and democratic company.

* ³⁵⁸ See for more information the text of ALIVE Mr. entitled «  The responsibility for the technical intermediaries of the Internet  », loc. cit., note 285; Michel LIVING and Christian the Right STANC (to dir.), Lamy of data processing and the networks, Paris, Lamy, 2002, N  2811, p. 1587 and Mr. CAHEN, the civil liability for the suppliers of access, loc. cit., note 185.

* ³⁵⁹ See A. LEPAGE, «  The responsibility for the suppliers of lodging and the suppliers of access to the Internet  : a new challenge for the justice of XXIe century  ?  », loc. cit., note 194, 16.

* ³⁶⁰ Expression borrowed from the speech of French the Prime Minister Jean-Pierre Raffarin with the EBG, See ASSOCIATION TO LIVE the NET, the suppliers of access and shelterers will be judges of the contents of the Internet, November 13, 2002, on line on  : News Food the Net < http://www.vivrele.net/node/900.html > (site visited on January 15, 2004).

* ³⁶¹ Expression borrowed from G. and Al, the HEARTH OF COSTIL, COp cit., note 242.

* ³⁶² ASSOCIATION FOOD the NET, the suppliers of access and shelterers will be judges of the contents of the Internet, loc. cit., note 360.

* ³⁶³ It is thus put at the load of these people receiving benefits one «  obligation of qualification of the contents  »  : F. LESORT and L. SZUSKIN, loc. cit., note 236.

* ³⁶⁴ «  The article [43-8], like the directive, invest the shelterer of a mission which is not simple to exert, while requiring of him to appreciate, whereas it is neither professional right nor a magistrate, the admissibility of the contents which it lodges  »  : N°608 report/ratio of Mrs. Mr. TABAROT, COp cit., note 201.

* ³⁶⁵ Mr. LIVING and C. the STANC (to dir.), COp cit., note 358, n°2814, p. 1589.

* ³⁶⁶ That will be much easier for the contents whose illiceity is obvious or obviously illicit (such as for example the sites paedophiles)  : SANTIAGO CAVANILLAS, COp cit., note 214, p. 44 to 46; A. LEPAGE, «  The responsibility for the suppliers of lodging and the suppliers of access to the Internet  : a new challenge for the justice of XXIe century  ?  », loc. cit., note 194, 17  ; G. and Al, the HEARTH OF COSTIL, COp cit., note 242.

* ³⁶⁷ The PSI «  is not safe from an error in all good faith. However, without prejudging quality of the aforesaid people receiving benefits, it is strong to bet that some of them will make time with other of the errors of appreciation which will lead to not justified suppressions, thus calling the lightnings of their customers while at the same time their only objective would be to satisfy the requirements of the law; on another side they could be brought in all good faith to continue to lodg contents prejudicial but on which they will not be able to appreciate reality in practice (in the event of counterfeit for example)  »  ; Matter of Eric BARBRY, the bill relating to the numerical economy screened, January 14, 2003, on line on  : The Newspaper of the Net < http://www.journaldunet.com/juridique/juridique030114_1.shtml > (site visited on January 15, 2004).

* ³⁶⁸ A. DEVILLARD, loc. cit., note 239.

* ³⁶⁹ The Free supplier anticipated the application of the Project of LEN while being authorized to cut the subscription of a user on simple notification of having the right. Moreover, 95% of the Net surfers yield to the pressure of a warning when the contents are considered to be illicit. The Net surfers seem to be afraid of the gendarme. See the article of Estelle DUMOUT, Responsibility for the shelterers: Free for a long time anticipates the law, January 16, 2004, on line on  : ZDNet France < http://www.zdnet.fr/actualites/internet/0,39020774,39137258,00.htm > (site visited on January 15, 2004).

* ³⁷⁰ A. LEPAGE, «  The responsibility for the suppliers of lodging and the suppliers of access to the Internet  : a new challenge for the justice of XXIe century  ?  », loc. cit., note 194, 16  : «  The damage made on the Internet can be fulgurating, and an immediate reaction of the shelterer will be thus the welcome to counter illicit the, even if it means one to then await of the judge a confirmation of measurement  ».

* ³⁷¹ Project LEN, above mentioned, note 227, art (à), I8-  : «  The legal authority can prescribe in summary procedure or on request, with any person mentioned to the 1 and 2 (technical people receiving benefits), all measurements suitable to put an end to a damage caused by the contents of a service of public communication on line, such as those aiming ceasing storing these contents or, failing this, at ceasing giving access of them  ».

* ³⁷² N°608 report/ratio of Mrs. Mr. TABAROT, COp cit., note 201. To specify, the judge will intervene all the times where the shelterer will miss with his duty withdrawal in order to sanction the failures of this last, but also to ensure its protection, if it is confronted with an abusive request for withdrawal on behalf of a Net surfer.

* ³⁷³ E. DUMONT, Responsibility for the shelterers  : the polemic is revived, loc. cit., note 238.