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

B) A lack of precision and clearness

The legislator wanting, at all costs, to work out an applicable legislation on the network in order to « to promote a surer use of Internet »^422(*), east can have gone too quickly in its development and thus missed rigor on certain points. Indeed, it would seem that industry exerts important pressures on the government in order to regulate the overflows exerted on the network^423(*). Moreover, it is stated in a European decision of 1999 that the objective is to encourage « an environment favorable to the development of Industry related to Internet »^424(*). The same applies to Quebec since the CRTC openly declared that Industry on Internet was to develop without being limited by any regulation^425(*).

The new legislations can appear very obscure as for the distribution of the functions of PSI and thus be badly interpreted by the courts. Indeed, the various activities defined by the laws are not always very clear and sometimes, the functions of a supplier could return in the field of application of several of these activities. Each person receiving benefits carries on a specific activity on the network definite in a fuzzy and vague way, where each one of them tries to limit its responsibility by qualifying itself. The courts are then in the obligation to interpret the roles of these various actors of Internet without being for as much certain than that corresponds truly to the will of the legislator. This confusion can have repercussions over the court orders^426(*), but also in the comprehension of the legislative texts. Consequently, the judge should not confine himself with the qualification given by the latter but rather, to be interested in the activity really carried on on the network.

Other failures are visible in the new legislations. Moreover, they appear very serious since they touch with the field of application of the law. Indeed, certain expressions used by the legislator are not defined or appear vaguer than envisaged. The legislations use the terms of « effective knowledge » or of « promptitude » without their giving definition. But especially, it should be noticed that many questions are without answer or have only insufficient brief replies. Indeed, how can we determine this « effective knowledge » ? Which is the degree of necessary knowledge to engage a responsibility ?^427(*) How the PSI it is seized at the time of the presence of illicit contents circulating on the Internet ? For how long must it block a document on the network ? When can we affirm that an activity or illicit information is « apparent » ? The intermediaries must censure all information which they consider illicit ? All these questions will find their answers in the interpretation which the judges of the new laws will make. The problem is that it is not certain, once again, that the various courts put forward the will of the legislator and, of the difficulties will be able can be to provide, as well as uncertainties or contradictions.

The new mode of responsibility also involves another disadvantage quite as serious since it places the PSI in a bad position. Indeed, according to the current mode, the PSI must withdraw or block all the contents considered to be illicit as soon as they are informed of it. However, this action can have important effects on the responsibility for these intermediaries. They can be thus seen reproaching by a third for not having removed or blocked litigious information but also, they can engage their responsibility if they carry out too quickly a withdrawal of perfectly licit information^428(*). This situation can appear very contradictory, and especially uncomfortable, for these actors who see, in all the cases, their committed responsibility. Moreover, in Québécois right, the LCJTI does not expect that one civil liability with regard to the PSI. No penal responsibility was envisaged. The common right applies thus in any occurring litigation. Thus the legislator will have to modify the Canadian criminal Code if it wishes to institute a penal responsibility which adapts to new technical realities^429(*).

Lastly, French Project^430(*) LEN brings an innovation. It sets up an inversion of the burden of proof which is against the principle of presumption of innocence^431(*). Indeed, a presumption of illiceity is set up in order to reduce the burden of proof of the applicant. Thus the contents circulating on Internet network will be supposed illicit^432(*). The victim will not have to prove it. The same applies to the other laws since the PSI will have to carry out the withdrawal or the blocking of information on request and if he considers that the latter is apparently illicit. The author of the illicit contents will have to then show that it did not commit any misdemeanor and any offense.

The various actors of Internet saw themselves granting functions enough surprising which will show, in the long term, if they are effective. For the moment, the legislator offers to the latter capacities of judge and critic who are normally contrary with the principles of any democratic and free country. Indeed, these measurements carry reached to considerable rights like the rights of the person. These recognized rights as being fundamental cannot be blocked except in quite precise cases. Internet seems one of them. Indeed, the illicit contents circulating on Internet network do not cease progressing for the greatest satisfaction of the young Net surfers. At this point in time a substantial question can be raised : these attacks are they necessary and legitimate vis-a-vis to the right to the private life ?

* ⁴²² Article first of the Decision n°276/1999/EC of the European Parliament and the Council of 25 January 1999 adopting a Community action plan multiannual aiming at promoting a surer use of Internet by the fight against the messages with contents illicit and prejudicial diffused on the world networks, OJ C.E, n°L 33 of February 6, 1999  ; in appendix in the book of P. BREESE, legal Guide of the Internet and the electronic trade, Paris, Vuibert, 2000, p. 408, on page 410.

* ⁴²³ In particular Industries of the discs which make important pressures so that the private individuals stop downloading pieces of music without paying royalties.

* ⁴²⁴ Decision n°276/1999/EC, above mentioned, note 422, art 2.

* ⁴²⁵ See the speech of Francoise BERTRAND, President of the Council of broadcasting and Canadian telecommunications, Ottawa (Ontario), May 17, 1999, on line on  : CRTC < http://www.crtc.gc.ca/frn/NEWS/SPEECHES/1999/s990517.htm > (site visited on January 20, 2004).

* ⁴²⁶ See the article of T. VERBIEST and E. WÉRY, «  The responsibility for the suppliers of services Internet  : last jurisprudential developments  », loc. cit., note 161.

* ⁴²⁷ SANTIAGO CAVANILLAS, COp cit., note 214, p. 51  : «  To consider that the person receiving benefits knew (and was thus to act, under penalty of engaging its responsibility) will be enough it to a simple anonymous denunciation (near the person receiving benefits and Parquet floor, for example) or to information in public matter (a such mention in the press), or will be necessary it a more formal complaint  ?  ».

* ⁴²⁸ F. LESORT and L. SZUSKIN, loc. cit., note 236  ; and Id., p. 45  : «  It must act quickly, with the risk to engage its criminal responsibility towards the injured thirds, without acting too quickly, with the risk to engage its contractual liability towards its customer  ».

* ⁴²⁹ F. AUMUELLER, loc. cit., note 277, 103.

* ⁴³⁰ Project LEN, above mentioned, note 227.

* ⁴³¹ Id., art (à), I-2.

* ⁴³² D.C.Q, art and C.civ., art 1352.