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

Paragraph 2 : Derivatives of the concept

The concept of « illicit contents », as we could see it, was not defined or at least, it was to it but only way diverted. The other terms derived from the concept have a definition given by the texts, which enables us to say that their field of application is much more restrictive. First of all, it is necessary to specify which are these terms. They are many and, for some, very similar at first sight. The texts employ the terms « illegal », « prejudicial », « vermin », « offending », « detrimental » and « undesirable ». Nuances must be made between these concepts bus according to whether we use one or the other, the solution will be different to stop the generated problem. Indeed, the measurements required in each case are not the same ones according to the definite contents.

First of all, it is necessary to make the distinction between « illicit contents » and « illegal contents ». Indeed, concept of « illegal contents » is defined by the texts. This term is very similar even synonymous with the first. In its original direction, which is illegal is all that is not legal, which is against the law and contravenes the latter openly^32(*). This term is attached only to the law contrary at the end illicit which is attached to vaguer concepts. Moreover, there can be illicit contents which are not therefore illegal. This concept consequently appears more restrictive than the illicit term. It thus includes/understands all the contrary intrigues with the law. Morals is by no means taken into account in this case, unlike the illiceity which makes it possible to include a great number of behaviors. Indeed, a Net surfer can not violate any law but on the other hand, it can carry reached to a particular category people determined such as for example, the minors who are the first victims on the network.

The Government of Canada opposes the concepts of « illegal contents » with « potentially offensive contents »^33(*). It states that the contents diffused in Internet can violate the Canadian laws. For example, the infantile pornography and the heinous propaganda which are illegal in the everyday life it are also on Internet. The laws must thus be respected on the network. These illegal contents must be distinguished from that which is offensive for certain people, but who remains legal. According to the Government of Canada, « by « potentially offensive contents », one hears, inter alia very contained sexually clarifies or of an extreme violence, or being able to be regarded as offensive for reasons of a nature social, religious, cultural or moral^34(*) ». It would seem that this type of contents concerns more particularly the protection of the minors, who are the people most likely to be offended by the presence on Internet of some of these potentially harmful messages for their physical development, mental and moral.

On the other hand, the European Commission, for its part, established a distinction between « illegal contents » and it « harmful contents », in its Action plan for the promotion of a surer use of the Internet of November 26, 1997^35(*). It raised that :

« The illegal contents must be treated with the source, by the organizations in charge of the application of the laws, on the basis of rule of the national law and the agreements of legal mutual aid. (...)

Being the problem of the harmful contents, the measures to be taken in priority should consist in giving means of action to the users (...) to allow in particular, the protection of the minors ».^36(*)

Terms « vermin » and « potentially offensive » seem synonymous because they are attached to the idea of the protection of a category of determined people regarded as incompetent^37(*) and fragile, such as for example that of the minors. The same applies to the terms « prejudicial », « detrimental » and « undesirable ». Indeed, as for the first, the latter are not punishable in oneself, but they can attack the moral integrity of certain more fragile people when those consult this kind of contents^38(*), such as for example, the pornographic sites reserved to the adults who can be seen and consulted by minors. These contents thus come to harm to the minors and thus their good development. The latter are the first touched by the presence of these contents on Internet network^39(*). Moreover, the public opinion thinks that it is intolerable that children can consult such documents reserved to the adults^40(*).

Terms like « illicit contents », « illegal », « offensive » etc, are not great limpidity nor very explicit. It would thus prove more convincing to expose using concrete examples the contents posing of the difficulties. Under the concept of « illicit contents » are generally referred certain activities such as propaganda heinous and racist, the pornography, the pedophilia, the attacks with the private life but also all that touches with the national safety of the territory, anti-competing practices and attacks with the intellectual property. We will not treat all these activities, but only some of them to illustrate our study.

* ³² Id.  ; See also the definition of Sylvie PICARDY, Delivers Green on the protection of the minors and human dignity in the audio-visual services and of information, D.I.T 97/1 p. 44.

* ³³ CANADIAN STRATEGY FOR THE SEDENTARY, CAREFUL USE AND PERSON IN CHARGE FOR INTERNET, COp cit., note 3.

* ³⁴ Id., p 2 and 3.

* ³⁵ COMMISSION OF THE EUROPEAN COMMUNITIES, Action plan aiming at promoting a surer use of Internet, November 26, 1997, on line on  : europa < http://europa.eu.int/information_society/programmes/iap/docs/pdf/call/1999/filterfr1.pdf > (site visited on March 12, 2004)  : This Plan was prolonged two years by the Commission, March 25, 2002 (on line on  : europa < http://www.info-europe.fr/europe.web/document.dir/actu.dir/AC005733.htm > (site visited on July 31, 2003)).

* ³⁶ Teresa FUENTES-CAMACHO (to dir.), international dimensions of the right of the cyberspace, Collection Right of the cyberspace, Paris, Edition UNESCO - Économica, 2000, p 125.

* ³⁷ Articles 153 and suiv. civil code of Quebec (L.Q. 1991, c.64) (quoted hereafter «  D.C.Q.  ») and article 488 French Civil code (101e ED., Paris, Dalloz, 2002) (quoted hereafter «  C.civ  »).

* ³⁸ S. PICARDY, loc. cit., note 32  ; Recommendation Rec (2001) 8 of the Committee of the Ministers to the Member States on the self-regulation of the cyber-contents, above mentioned, note 18.

* ³⁹ 21% of the parents indicate that their children had access to explicit material from the sexual point of view (with the knowledge of the parents) and 6% of the children received sexual material not requested (with the knowledge of the parents)  ; percentages borrowed from  : CANADIAN STRATEGY FOR THE SEDENTARY, CAREFUL USE AND PERSON IN CHARGE FOR INTERNET, COp cit., note 3, p 6.

* ⁴⁰ Id.  : 51% of the Canadian parents support that their principal concern concerning the access of their children to Internet is the inappropriate contents.