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

Section II : Attacks necessary and legitimate to the right to the private life

The illicit contents circulating on Internet network pose important disadvantages everywhere in the world as well in the democratic countries authoritative. For the moment, it seems still too early for truly knowing the stakes and the damage which Internet can cause on the behavior of the Net surfers. Moreover, no study currently gives the impacts of them. However, the laws apply to the network and what is in general illicit in the real world, is also in the virtual world. So the restrictions on the freedom of expression also exist on the network (§1). This limitation falls under a preoccupation with a safety which is accompanied by a desire of identification on behalf of the legislator (§2).

Paragraph 1 : Restrictions on the freedom of expression

The freedom of expression, fundamental principle in a democratic company, always made run much ink and even more, since the appearance of Internet network. Indeed, at the origin, the ideology of Internet, it should not be forgotten, was to allow the individuals of all nationalities, all religions and all cultures to be expressed freely without any obstacle. Nevertheless, as we could many and to underline it many times, the remarks of some of them led to the limitation of the freedom of expression. Thus we will study initially, the bases of this freedom (A) to delay us, thereafter, on its limits (B).

A) The base of freedom of expression

Many Net surfers consider that « on the Network all must be able to be said, it is interdict to prohibit »^433(*). Philosophy originating in Internet is thus the idea of an absolute freedom without any constraint such as for example, the intervention of the State. Indeed, the libertarians defend the idea that the network keeps its embryonic principle in spite of the deviances noted by certain Net surfers. They want that there remains a space of ideal exchange « where the diversity of the opinions has to thrive »^434(*).

The principle of the freedom of expression is proclaimed in various national and international texts which protect it. First of all, the freedom of expression is guaranteed by many European texts such as article 10 of the Convention of safeguard of the humans right and of fundamental freedoms^435(*) which states that :

« Any person is entitled to the freedom of expression. This right includes/understands the freedom of thought and freedom to receive or communicate information or ideas without there being able to be interference of public authorities and without consideration of border [but] the comprising exercise of these freedoms of the duties and the responsibilities [it] can be subjected to certain formalities, conditions, restrictions or sanctions ».^436(*)

Thus the freedom of expression can be subjected to certain restrictions framed by strict conditions. Indeed, interference in a protected right « must be envisaged by the law, to aim at a legitimate goal and to present a character of need in a democratic company »^437(*). There is not thus absolute freedom without any limitation. However, the European Court of the humans right indicates that « the freedom of expression constitutes one of the essential bases of a democratic company, like one of the paramount conditions of its progress and the blooming of each one »^438(*). This is why this freedom protects as well « the information or ideas accommodated with favor or considered as inoffensive or indifferent, but also (...) those which run up against, shock or worry the State or an unspecified fraction of the population. Thus want it pluralism, the tolerance and the spirit of opening without which it is not democratic company »^439(*).

Then, article 19 of the international Pact relating to the civil laws and political^440(*) also guarantees this freedom of expression and adds to it, there still, a restrictive provision. Indeed, it enacts that this freedom can be restricted if these limits are expressly fixed by the law and that they are necessary « with the respect of the rights or reputation of others [and] with the safeguard of national safety, law and order, health or public morality ». Moreover, article 20 of the same text lays out as « propaganda in favor of the war is prohibited by the law and any call to national, racial hatred or chocolate éclair which constitutes an incentive with discrimination, the hostility or violence is prohibited by the law ». These articles take as a starting point the article 19 of the universal Declaration of the humans right^441(*) of December 10, 1948.

In Canada, there are also texts guaranteeing this freedom of expression. It is about article 2b) of the Canadian Charter of the rights and freedoms^442(*). It states that « each one has following fundamental freedoms : b) freedom of thought, belief, opinion and expression, including and other the mean of communication freedom of the press ». For the supreme Court, it represents most important of freedoms in a free and democratic company^443(*). It stated besides in a famous stop Irwin Toy Ltd. C. Quebec (Attorney General)^444(*), the object of this freedom which is « [to ensure] that each one can express its thoughts, its opinions, its beliefs in fact, all the expressions of the heart or the spirit, also unpopular, unpleasant or protestors are they ». Thus the supreme Court protects any even unpopular speech^445(*) insofar as the expression employed is not violent^446(*). Indeed, in the stop Irwin Toy, it was recalled that « in fact, the freedom of expression is the guarantee that we can communicate our thoughts and our feelings, in a nonviolent way, without fear of the censure »^447(*). This freedom thus has a paramount place in the Canadian company which reserves to him a protection rather close to that of the United States, with the difference, however, that it can be limited on the base of the article first of the Charter. Indeed, this article allows certain restrictions on the rights protected by the Charter. It lays out that « the Charter guarantees the rights which are stated there. They can be restricted only by one legal provision within limits which are reasonable and whose justification can be shown within the framework of a free and democratic company ». The judges released « a method of analysis to determine if the justification of a limit imposed on a right or a freedom can be shown within the framework of a free and democratic company »^448(*). They apply the test released in stop R. v. Oakes^449(*). It acts initially, to check if the objective of the government translates an urgent and real concern and, in second place, to measure the proportionality between the objective and disputed measurement. This last condition is divided into three stages. On the one hand, the legislation must have a rational bond with this objective; in addition, it must deteriorate the least possible the violated rights of the Charter and finally, it is necessary to find balance between the legislative objective recognized like sufficiently important and the extent of the violated right. Once this evaluation carried out, the judges can determine if the attack with the freedom of expression is justified or not under cover of this article first of the Charter.

There also exists in Quebec a Charter of the rights and freedoms of the person^450(*) who affirms the freedom of expression like fundamental freedom^451(*). Indeed, article 3 of the Charter lays out that « any person is titular fundamental freedoms the such freedom of conscience, the freedom of religion, the freedom of thought, the freedom of expression, the peaceful right to meet and the right of association ». With the difference of the Canadian Charter^452(*), this text has only one quasi constitutional statute but has however a place privileged in the hierarchy of the standards. It protects the rights and freedoms of the person against all violations in the private reports/ratios. The Canadian Charter, on the other hand, will be applicable to the private actors only if the violation of a basic right by a private part results from an act of legislative nature or an interaction with a public officer or a government agency^453(*).

France has also a constitutional text guaranteeing this freedom of expression which is the Declaration of the rights of man and of the Citizen^454(*) of 1789. It states in its article 11 that « [it] free communication of the thoughts and the opinions is one of the most invaluable rights of the man; any citizen can thus speak, write, print freely, except answering of the abuse this freedom in the cases determined by the law ». This text does not have any legal authenticity in a strict sense term^455(*). The French government can consequently limit this freedom by the law. Moreover, there is an arsenal of legislative texts restricting it^456(*).

The freedom of expression is without question a basic right in any free and democratic company. On Internet, this principle remains identical. As we could notice it, it is guaranteed and protected by a plethora from texts. However, this freedom of expression is not absolute since only « it is not good to be too free »^457(*). Indeed, the Net surfers tend to misuse easily the great latitude which the virtual world of Internet offers. Thus this freedom of expression, so often asserted by the users of the network, knows a certain handing-over in question. Moreover, as we already could expose it, the censure, attack direct with this freedom, became a kind of solution of principle on the network.

* ⁴³³ Michel ELIE, «  With the sources of the Net  », February 2-3, 1997, the Television-Radio-Multi-media- World.

* ⁴³⁴ Domenica CUSTOS, freedom of expression on Internet in the United States and in France, University Paris-I the Pantheon Sorbonne, International Conference the Internet and the Right  : Right European and compared Internet, September 2000, p. 17, on line on  : < http://droit-internet-2000.univ-paris1.fr/dossier7/Dominique-Custos.doc > (site visited on January 29, 2004).

* ⁴³⁵ Convention of safeguard of the humans right and of fundamental freedoms known as «European Convention humans right» or «CEDH», (1955) 213 R.T.N.U. 221.

* ⁴³⁶ See for more information the article of PF. DOCQUIR, loc. cit., note 293.

* ⁴³⁷ Martin IMBLEAU, negation of Shoah- Freedom of expression or racist crime  ? Negationnism of Shoah in international law and compared, Paris, Harmattan, 2003.

* ⁴³⁸ Court. eur. D. h., Thoma C. Luxembourg, March 29, 2001, § 44  ; Lingens C. Austria, 8 juil. 1986, § 41.

* ⁴³⁹ Court eur. D. h., Handyside C. Royaume-uni, December 7, 1976, § 49.

* ⁴⁴⁰ International pact relating to the civil laws and political, (1976) 999 R.T.N.U. 171.

* ⁴⁴¹ Universal declaration of the humans right, A.G. Res. 217 A (III), Doc. N.U. With/810 (1948), art  : «  Any individual is entitled to the freedom of thought and expression, which implies the right not to be worried for its opinions and that to seek, to receive and spread, without considerations of borders, information and the ideas by some means of expression that it is  ».

* ⁴⁴² Charter Canadian of the rights and freedoms, above mentioned, note 78.

* ⁴⁴³ See the following stops  : SDGMR C. Dolphin Delivery Ltd., [1986] 2 R.C.S. 573 (the freedom of expression must be interpreted in a broad and generous way); Ford C. Quebec (Attorney General), [1988] 2 R.C.S. 712; Irwin Toy Ltd. C. Quebec (Attorney General), above mentioned, note 74; Edmonton Newspaper C. Alberta (Attorney General), [1989] 2 R.C.S. 1326; R. v. Keegstra, above mentioned, note 73.

* ⁴⁴⁴ Id. It acts of the first business treating of the freedom of expression. It indicates that it is necessary to analyze the contents of the expression in question and to look at if it is attached to the great values protected by the freedom of expression  : participation in the political processes, research of the truth and personal blooming. If the contents of the expression move away from these values, the State has any latitude to limit them or remove them  ; See also stop R. v. Keegstra (Id., 726).

* ⁴⁴⁵ It is not necessary to examine the veracity or the falseness of a matter and even less the popularity of this last. See Ross school C. Conseil of the district n°15, [1996] 1 R.C.S. 826, 865  ; R.C. Zundel, above mentioned, note 85.

* ⁴⁴⁶ Irwin Toy Ltd. C. Quebec (Attorney General), above mentioned, note 74; R.C. Keegstra, above mentioned, note 73; R.C. Andrews, above mentioned, note 84.

* ⁴⁴⁷ This stop takes again another judgment of the supreme Court  : Switzman C. Elbling, (1957) R.C.S. 285, 306.

* ⁴⁴⁸ R.C. Keegstra, above mentioned, note 73, 735.

* ⁴⁴⁹ [1986] 1 R.C.S. 103.

* ⁴⁵⁰ Charter of the rights and freedoms of the person, above mentioned, note 79.

* ⁴⁵¹ Ford C.P.G. of Quebec, [1985] C.S. 147 or J.E. 85-59.

* ⁴⁵² The Canadian Charter forms integral part with the Constitution. It thus precedes all the other laws except those constitutional.

* ⁴⁵³ Christian BRUNELLE, «  The applicability of the Charters of the rights  », in Collection of right 2001-2002, School of the Bar of Quebec, vol.7, Right administrative public and, Cowansville, Editions Yvon Blais, 2001, p.33, on page 35.

* ⁴⁵⁴ Declaration of the rights of man and of the Citizen of 1789, in line on  : Presidency of the Republic < http://www.elysee.fr/instit/text1.htm#finNavSec > (site visited on January 29, 2004).

* ⁴⁵⁵ Jean MORANGE, freedom of expression, coll Which do know I?, Paris, PUF, 1993, p. 24.

* ⁴⁵⁶ For example, the Decree of 1939 on the foreign publications, the Law of 1949 on the protection of the minors, Law Gayssot of 1990 on the revisionists, the Law Guigou on the protection of the dignity of the victims of 2000; See the book of E. DUVERGER and R. MÉNARD, COp cit., note 119, p. 38 and 39.

* ⁴⁵⁷ Quotation borrowed from the French philosopher and mathematician, Blaise PASCAL, Extract of the Thoughts on the religion.