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

B) The delicate exercise of the censure : a serious act

Pleasing Internet network of the conclusions surprising for democratic countries where normally the freedom of expression constitutes a fundamental principle. Indeed, the exercise of the censure^374(*) was always regarded as a dangerous exception^375(*). However, since the problems generated by the expansion of the network, the countries decided to choose this way as sine qua non solution^376(*). Why have made such a choice ?

One of the first brief replies is that there are photographs obscenes more and more, of virtual pedophilia or prostitutions on the network^377(*). It is thus necessary to limit the rights and freedoms of the Net surfers on the network. It is besides for this reason that certain countries such as China, Cuba or South Korea chose to exert a real and firm censure on the network^378(*). They thus block a good number of electronic sites and the access to Internet. It is obvious that the democratic countries like Canada and France are not ready to adopt such an extreme measure. But the exercise of the censure by these countries proved for the legislator like necessary, even inevitable. How can we justify such a legal orientation in free and democratic countries being ?

To start, it should not be forgotten that the first victims are unfortunately the minors who surfent hasardeusement on Internet^379(*). They are found consequently, confronted with illicit contents being able to harm to them^380(*). Then, this practice seemed the simplest answer to eliminate these contents. It thus makes it possible to avoid their massive diffusion. Moreover, the undergoing legislator of the pressures of the groups of lobbying wanted a solution fast. Thus the PSI became the means of intervention to fight against this plague. These new laws enable them, consequently, to act quickly while withdrawing or by blocking any message which can cause any disturbs with the Net surfers. Moreover, that also enables them to limit the setting concerned of their responsibility on Internet. Indeed, by eliminating the illicit contents from the network, they attenuate the fact to be held responsible for the presence of undesirable information on the network.

The PSI must thus exert a kind of « censure private « « out it judicial power », being able to carry out a radical attack with the freedom of expression, by the removal of the contents, without preliminary intervention of the judge »^381(*). However, it should be specified that French Project LEN sets up a procedure against the potentials abuse the thirds in order to prevent the possible overflows^382(*). This role of « private critic » thus calls into question the fundamental principles of presumption of innocence, of freedom of expression and competence of the judicial power to return justice^383(*). An essential question can, consequently, occur which is to know if the attacks with the freedom of expression, paramount right, will become a current and banal practice on the network.

The legislator by allotting the right to censure to the PSI their thus offered a great capacity of appreciation, which explains criticisms formulated against Project LEN^384(*). Indeed, the majority of associations declare this text liberticide^385(*). Nevertheless, the legislator all the same granted at organizations the capacity to control the intrigues carried out on Internet network. Thus in France, the Higher Council of Audio-visual (SCA) had been seen granted initially, this function of regulation of the network^386(*). This attribution making run much ink^387(*) led the legislator to finally deciding to leave Internet the sphere of the SCA which would only be occupied from now on « of audio-visual communication radio television »^388(*). On the other hand, it goes from there differently to Quebec since the Council of broadcasting and Canadian telecommunications (CRTC) announced on May 17, 1999 that it did not want to regulate Internet^389(*). It thus refused to legislate on the illicit contents circulating there since it considered that the current legislation was sufficient. However, the Québécois Net surfers think on the contrary that this organization should control the network as can do it the Control of the cinema^390(*). Moreover, many are those which do not include/understand this absence of responsibility for the CRTC which could completely exert a control on Internet. Of course, an organization of control will not solve all the problems generated on the network. The best example on the matter is that of Australia with its Broadcasting Services Amendment (Online Services) Act of 1999^391(*). It gives competence to Australian Broadcasting Authority (ABA) to control the contents available on the network thanks to the denouncement^392(*). It classifies the various Australian contents according to dimensions'^393(*). This country is the first industrialized country to exert a true censure^394(*) without taking account of the technical reality of Internet and especially of the basic rights such as the freedom of expression. Moreover, this very criticized law, did not solve the problem of the pornographic sites consulted by the minors on the network^395(*).

The censure thus appeared for the legislator as the possible solution to control Internet. It contravenes the starting idea of the network which is, it should not it be forgotten, a space of freedom even if it is necessary, that it becomes about it also a space of right^396(*). Indeed, it is obvious that this measurement is not attacked in the middle of the problem since « to remove the sites in racist matter does not dam up racism ; to remove the contents of pedopornographic nature does not solve of anything the problems arising at the company by the pedophilia »^397(*). This is why the censure east cannot be not the solution to be developed for free and democratic countries saying itself. Moreover, the authors Nathalie COLLARD and Pascale NAVARRO state in their treating work of the pornography, that « rather to prohibit these images, we are used for ourselves of important mechanisms to fight them : education, prevention, sensitizing. These measurements have much more their place in a democracy that the censure »^398(*).

The various solutions released by the new legislations thus brought more or less satisfactory solutions, but one needed emergency to counter the proliferation of the illicit contents circulating on the network. The problem is that the censure can have considerable perverse effects. It is necessary thus well to frame it and control it in order to prevent the potential errors. Moreover, it should not be forgotten that the nondemocratic countries use it with excess. The question thus remains always outstanding : is or not necessary it to censure ? For the moment, the only unquestionable thing is that the new laws applying this censure comprise many inconsistencies and limits which can have serious repercussions.

* ³⁷⁴ The censure is defined as the authorization preliminary given by a government to the publications, with the spectacles... the censure is thus a control before publication, a political act a priori  ; See the article of Y. BISMUTH, COp cit., note 181, p. 172.

* ³⁷⁵ For the author Jean-François THÉRY (to finish of it good once for all with the censure, Paris, the editions of the Stag, 1990, p. 181), the censure «  consolidate me in the idea that total prohibition, in a company like ours, is ultimately a dangerous weapon  ».

* ³⁷⁶ For the authors T. PIETTE-COUDOL and A. BERTRAND, (COp cit., note 138, p. 113), there is a world wave of prudery which extends on the network with the censure.

* ³⁷⁷ For example, the sites paedophiles are in clear increase (+46%) according to Association Shield whereas the National Criminal Intelligence English Service for its part announces an increase of more than 64%. (See for more details the site of Association Shield  : < http://www.bouclier.org/ > and < http://www.ncis.co.uk/ >). Moreover, 52% of these sites are located in North America with a worrying increase in Europe.

* ³⁷⁸ The censure is thus the solution most retained by the countries that they are democratic or not. Of course, it is carried out to differing degrees but the effects are the same ones  : there is an attack with the freedom of expression. See REPORT/RATIO OF REPORTERS WITHOUT BORDERS, Internet under monitoring  : Obstacles with the information flow on the network, 2003, on line on  : RFS < http://www.rsf.fr/IMG/pdf/doc-2233.pdf > (site visited on January 15, 2004).

* ³⁷⁹ Indeed, 80% of the young people were exposed to pornographic sites and most of the time in a hazardous way.

* ³⁸⁰ Some of these contents are also accessible on other supports such as television and the satellite. However, they do not cause as much passion than Internet network. According to author J-F. THÉRY in its work «  To finish of them good once for all with the censure, (COp cit., note 375, p. 40 and 41), one claims the censure to protect the others. (...) That which whether extremely asks the censure for the others, actually does not require it of the authorities to impose on the others its own values, in order to be sure that it is in the good way  ? (...) Ultimately do not ask it protection against the difference, pluralism, the tolerance, which dilutes the certainty relativize the values, and thus ruin safety  ?  ». In short, those which require the censure seem to want that the company adopts their personal opinions and thus to withdraw all information which disturbs them. For the moment, we do not know the impacts nor the effects which produce the illicit contents on the behavior of the young people. At this point in time the following question can legitimately arise  : We do not take the pretext of the brittleness of the minors to censure information which obstructs us  ? (See P. JOUGLEUX, COp cit., note 92, p. 76 and suiv.) this Is truly the ideal solution  ? Is necessary it to censure the virtual world more that the real world  ?

* ³⁸¹ 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.

* ³⁸² Project LEN, above mentioned, note 227, art (à), I-4.

* ³⁸³ T. VERBIEST, and E. WÉRY, «  The responsibility for the suppliers of services Internet  : last jurisprudential developments  », loc. cit., note 161, 170.

* ³⁸⁴ Project LEN, above mentioned, note 227.

* ³⁸⁵ See the sites of various associations  : Iris, Odebi, Reporters without border, Food the Net... They express sharp a dissatisfaction against this bill. The majority call with the boycottings, the petitions or to express its distress vis-a-vis this text. The Association of the Suppliers of Access (AFA) also protests against this law because she does not want to find herself to make the «gendarme» on her waiters. Moreover, it should be stressed that the French deputies receive pressures of the Industry of the disc which would wish to track the illegal files and to make thus responsible the suppliers and, failing to attack the private individuals. All these external pressures push the legislator to be tried to find the best area of agreement knowing than it does not have the choice to transpose the Directive on the electronic trade (above mentioned, note 176).

* ³⁸⁶ See also   Philippe CROUZILLACQ, the SCA he will control Internet  ? , 26/02/2003, on line on  : 01net. < http://www.01net.com/article/202519.html >; Jerome THOREL, the law on the numerical economy adopted in first reading by the Parliament, February 27, 2003, on line on  : ZDNet France < http://www.zdnet.fr/actualites/business/0,39020715,2131170,00.htm >  ; Estelle DUMONT, Supervision of the SCA on Internet  : cultural lobbies stronger than Nicole Fountain, loc. cit., note 241.

* ³⁸⁷ In particular Association Food the Net in its article entitled Vivre the Net is opposed firmly to any general competence with the SCA to regulate Internet (Press release, 22/01/2003, on line on  : < http://www.vivrele.net/node/938.html > (site visited on January 15, 2004)). It also should be specified that many are those which considered that it was not the role of the SCA to control contents Internet. This last dealing only with the audio-visual one. According to the remarks of Claudie HAIGNERÉ, Minister delegated to Research and New Technologies, «  Internet could not be compared to a audio-visual communication, except with regard to the diffusion of radios and television on Internet  ». See the text of Jerome, THOREL, Law Fountain  : numerical economy on the way to frame the public expression, March 13, 2003, on line on  : ZDNet < http://news.zdnet.fr/story/0,,t118-s2131870,00.html > > (site visited on January 15, 2004).

* ³⁸⁸ Project LEN, above mentioned, note 227, art 1st  ; See the article of   Arnaud DEVILLARD and Guillaume DELEURENCE, Law of the Internet  : what will change, 09/01/2004, on line on  : 01net. < http://www.01net.com/article/227943.html > (site visited on January 15, 2004).

* ³⁸⁹ CRTC, the CRTC will not regulate Internet, Communiqué, May 17, 1999, Ottawa-Hull, on line on  : CRTC < http://www.crtc.gc.ca/FRN/NEWS/RELEASES/1999/R990517.htm > (site visited on January 15, 2004)  : the Council does not want to regulate the new Canadian media not to handicap this industry in the field of the competition which is exerted on a worldwide scale and thus to develop it. We can put the question to know if Industry did not make a lobbying on the CRTC to arrive at such a decision.

* ³⁹⁰ It classifies films according to the Law on the cinema, L.R.Q., C.C-18.1, art 81.

* 391 Broadcasting Services Amendment (Online Services) Act 1999 No 90, 1999.

* ³⁹² Robert CASSIUS OF LINVAL, «  Censure  : when you hold us  », (1999) 30 J.du B. n°21, on line on  : The Newspaper of the Bar < http://www.barreau.qc.ca/journal/frameset.asp?article=/journal/vol31/no21/surlenet.html > (site visited on January 15, 2004).

* ³⁹³ See James PEARCE, In Australia, the classification of the sites would be «ineffective», June 18, 2002, in lines on  : ZDNet Australia < http://news.zdnet.fr/story/0,,t118-s2112010,00.html > (site visited on January 15, 2004).

* ³⁹⁴ Jean-Marc MANACH, Australia prohibits the «adult topics», 22 Féb 2001, on line on  : tranfert.net < http://www.transfert.net/a4297 > (site visited on January 15, 2004).

* ³⁹⁵ Since the entry into force of the new Australian law, there were only six sites which were prohibited on 290 complaints. It would seem that there is much work to still make bus for the moment, they are the young people who pay the overflows of them. See Hamish FITZSIMMONS, Proposals to stop Internet porn' S reach, AM, Radio operator National, 4 Mars 2003, on line on: < http://www.abc.net.au/am/s797700.htm > (site visited on January 15, 2004). Moreover, the young people consume more «  X-rated videos  » that pornographic sites what limit the application of the Australian law of censure, as well as the foreign sites which are not subjected to this law and which also have materials of an extreme violence. See ELECTRONIC FRONTIERS AUSTRALIA RELEASE MEDIA, Censorship laws contribute to youth accesses to violent one pornography, 3 Mars 2003, on line on: < http://www.efa.org.au/Publish/PR030303.html > (site visited on January 15, 2004).

* ³⁹⁶ Michel ALBERGANTI and Stephan FOUCART, «  Internet delivered to the censure  », The World, April 8, 2003  ; See the work of Nathalie COLLARD and Pascale NAVARRO entitled Prohibited with the women  : The feminism and censure of the pornography (Quebec, Boreal, 1996)  : this last shows that more and more feminists denounce the traps of the censure. They are in favor of the existence of a multitude of speech in the company even if the price to be paid is that of the freedom of expression. Each one must be free of reading and looking at what he wants without no censure being made.

* ³⁹⁷ Id., Mr. ALBERGANTI and S. FOUCART.

* ³⁹⁸ Id., NR. COLLARD and P. NAVARRO, p. 91.