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

B) Difficulties related to the exercise of this freedom on the network

The restrictions on the freedom of expression on Internet network always caused and, still cause, of important debates and interrogations. Indeed, of many partisans « libertarians » wish that Internet remains a space of total freedom where all can say themselves or be made without no control coming to censure their remarks. They want that this tool remains the space of freedom par excellence. However, the network is a tool of propaganda, overflow and défoulement impressive. A freedom of absolute expression generates the proliferation of this kind of action and misdeeds. For or the freedom of expression counters on the network is the substantial question which we will try to answer. Initially, it should be specified that various designs clash on Internet. Initially, there are the American absolutism and Canadian who founds a kind of « informational paradise »^458(*) on the network (1) and, in second place, the European relativism which appears more mitigated solution (2).

1) American and Canadian absolutism : one « informational paradise »

The United States has a very libertarian,^459(*) single ideology in its kind, because of famous the First Amendment of the American Constitution^460(*). It lays out that « the Congress will not relative make any law with the establishment of a religion or by prohibiting the free exercise ; or restricting the freedom of word or the press ; or right of the people to be assembled peacefully, and to address petitions to the government for a repair of its wrongs ». This text thus does not make it possible the government to limit or to even harm the freedom of word, practically absolute right in this country. Consequently, American has a very broad vision of this freedom and all can be said and be done on Internet. The American design considers that this freedom is an element founder and essential in their democracy and that very reached with this element is an attack with this freedom. Thus the right to be expressed freely allowed to judges supreme Cour of the United States to declare unconstitutional several laws tending to restrict it. For example, the Communication Decency Act protecting the minors against information with undesirable contents present on the network, voted in 1996 by the Congress, was censured by the supreme Court. Indeed, this Court considered that two of its provisions were against the First Amendment of the Constitution^461(*).

This vision absolutist of the freedom of expression can sometimes shock, especially for the European countries, since the racist speeches, revisionists and the majority of the explicit sexual messages are protected by this text. This First Amendment really allows it the Net surfers, for example, of saying and writing absolutely all in « hiding » behind this one? Can they defame without risk, call with the murder or even diffuse images paedophiles thanks to this so-called absolute freedom ? It is obvious that not. Although the principle is total freedom on the network and that it founds a haven of peace for many delinquent Net surfers, the supreme Court seems to want to release from the limitations moved by the defense of the public interest^462(*). Indeed, the obscenity^463(*) or the childish pornography^464(*) is not protected by this amendment. This is why also the American law « sanction racist behaviors, not remarks. A violent control, not of the wounding words »^465(*).

Sometimes of course, this First Amendment appears to even authorize inadmissible remarks disturbing for certain people and in particular for the minors. For example, the forums of discussion are the place dreamed of the young people who want to exchange opinions or any other information on the same center of interest. These forums allow a dialog with complete freedom and sometimes skids can occur. Indeed, the young people défoulent there or there discover a new form of sexuality. Nevertheless, to dam up these excesses, of the regulators are present to supervise the messages placed at the disposal of the public^466(*). Unfortunately, all the forums do not have any^467(*). For this reason some clavardages are subjected to no control and in addition, with any censure. The question is then to know if they should be left without control. More especially as many contents are likely to be illicit. Until where can we tolerate certain remarks guaranteed by the freedom of expression ?

The United States prefers that the network autoréglemente even if if certain things can offusquer. The cultural differences of this country make that it dissociates rest of the world, which involves serious problems of exequatur decisions. However, American is not only since Canada has a rather similar design, even if the restrictions are apparent.

Indeed, Canada has a rather broad approach of the freedom of expression. The Canadian supreme Court, in its decision R.C. Sharpe^468(*), declared that :

« The right to the freedom of expression rests on the conviction that freedom of movement of the ideas and the images is the best way towards the truth, personal blooming and the peaceful coexistence in a made up heterogeneous company people whose beliefs diverge and are opposed. If we do not like an idea or an image, we are free to oppose or simply to us to divert us to it. In the absence of sufficient constitutional justification however, we cannot prevent a person to express it or present it, according to case's.

The freedom of expression is however not absolute. Our Constitution recognizes that the Parliament or a provincial legislature can sometimes limit certain forms of expression. General considerations, such prevention of the hatred which divides the company, as in the Keegstra stop, above mentioned, or the prevention of the damage which threatens of the vulnerable members of our company, as in Butler, above mentioned, can justify the prohibition of certain forms of expression in certain circumstances. Because of the importance of the guarantee of freedom of expression, any attempt aiming at restricting this right must however be the subject of a very attentive examination ».

As for the United States, the freedom of expression, in Canada, is not absolute. It makes it possible to ensure the democracy^469(*) and pluralism. Thus even the ideas most unpopular, unpleasant, protestors^470(*) and distort^471(*) must be able to appear and express themselves freely. The Charter very guarantees contained of an expression, except if it takes a violent form^472(*). The judges recall that the censure is a practice incompatible with freedom and the democracy^473(*) and in addition, in one « free and democratic company ». Nevertheless, it is necessary to limit certain contents such as the youthful pornography and the obscenity^474(*) diffused on the network. For example, first is sanctioned in article 163.1 of the criminal Code. This article was considered by the supreme Court constitutional in the majority of its applications and bearing reached to the freedom of expression guaranteed by article 2 (b) of the Canadian Charter, in some others. Indeed, it is regarded as unconstitutional if it can prohibit :

« with [one] adolescent to have in its possession, there still exclusively for its personal use, of the photographs or the video recordings sexually explicit of itself, only or in company of another person with whom it is devoted to a legal sexual activity. The inclusion of this material bordering in the field of application on prohibition encroaches heavily on the freedom of expression and adds little to protection that the provision ensures the children ».^475(*)

This precision returns in the logic of the freedom of Canadian expression since the private sphere should not be controlled by the State. It is about a right guaranteed by the Charter^476(*). Of course, certain things are not allowed, but it should not be forgotten that the right to be expressed is a fundamental principle for any person without consideration of age in particular. However, of the questions can be also posed, like the following ones : What can we tolerate ? What can we repress ? Can we say all that we want on the network at the time of a private conversation ? Where the correspondence or the private conversation starts and where that finishes which is public ? On Internet, this distinction appears much more difficult than in the real world what causes many debates besides^477(*). Indeed, the possibility of communicating with a great number of anybody using only one « click » the distinction makes difficult.

Canada and especially the United States thus have a broad design of the freedom of expression. The majority of the speeches are protected what can surprise, and sometimes even, to shock the European countries and more particularly France. These intellectual disparities are amplified with Internet which disseminates everywhere in the world information which does not correspond inevitably to the ideology of the receiving country. From where the following question : the Net surfers are they ready to assume the consequences of the universalization of information and, in particular, to tolerate the multiple approaches of the freedom of expression of the countries located at only one « click » of distance ?

* ⁴⁵⁸ Expression borrowed from the author P. MACKAY, loc. cit., note 27. It compares them «  informational paradises  » with «  tax havens  » since these countries do not impose any control on the sites which they can lodg.

* ⁴⁵⁹ American often takes as model the quotations of the founders to argue their libertarian vision, such as Thomas JEFFERSON who said that «  [If a book] is false in its facts, disapprove it; if it is false in its reasoning, refute it. But, for the love of God, let freely hear the two points of view to us and of VOLTAIRE, I disapprove what you say, but I will defend until death your right to say it  ».

* ⁴⁶⁰ American constitution of September 17, 1787, above mentioned, note 147.

* ⁴⁶¹ These provisions were declared unconstitutional in first authority (ACLU. v. Reno, 929 F. Supp. 824 (E.D. Pa. 1996) and Shea v. Reno, 930 F. Supp. 916 (SDNY)), then in call by the supreme Court (Reno v. ACLU., 512 US 844 (1997), 117 S. Ct 2329)  ; See the article of Cynthia CHASSIGNEUX, «  Protection of the minors and freedom of expression  : the cancellation of the Communication Decency Act  », D.I.T 97/4, Re-examined Quarterly, p.72.

* ⁴⁶² See the article of D. CUSTOS, loc. cit., note 434.

* ⁴⁶³ See the following stops  : Chaplinsky v. New Hampshire, 315 US 568 (1942); Roth v. United States, 543 US 476 (1957); Miller v. California, 413 U.S. 15.

* ⁴⁶⁴ However, of many stops show the very libertarian approach and sometimes even, very contradictory or paradoxical caused by this first amendment. Indeed, the decision Ashcroft v. Coalition (above mentioned, note 149) states that the speech which is neither obscene nor the product of the sexual abuse falls under cover of the First Amendment. Thus the provisions of Child Pornography Prevention Act off 1996 were regarded as opposite with this text.

* ⁴⁶⁵ E. DUVERGER and R. MÉNARD, COp cit., note 119, p. 56.

* ⁴⁶⁶ See the article of Agathe LEPAGE, «  Freedom of expression, responsibility and forums of discussion  », Com. Com. électr. 2003. Com. n°3, p 19.

* ⁴⁶⁷ The mode of communication such as IRC is a place of direct discussion which is subjected for the moment to no true control. Moreover, this last would be difficult because all the messages are exchanged on line and everywhere in the world. How to make to carry out a minimum of monitoring? See pH. JOUGLEUX, COp cit., note 92, p.13.

* ⁴⁶⁸ R.C. Sharpe, above mentioned, note 116.

* ⁴⁶⁹ Edmonton Newspaper C. Alberta (Attorney General), above mentioned, note 443.

* ⁴⁷⁰ Irwin Toy Ltd. C. Quebec (Attorney General), above mentioned, note 74.

* ⁴⁷¹ R.C. Zundel, above mentioned, note 85.

* ⁴⁷² Irwin Toy Ltd. C. Quebec (Attorney General), above mentioned, note 74.

* ⁴⁷³ R. v. Keegstra, above mentioned, note 73.

* ⁴⁷⁴ R.C. Butler, above mentioned, note 114, p. 497  : the Court concluded that «  the prohibition of the obscenity in a legislative text constitutes a valid objective which justifies a certain infringement of the right to the freedom of expression  ».

* ⁴⁷⁵ R.C. Sharpe, above mentioned, note 116, § 110.

* ⁴⁷⁶ Right guaranteed by article 5 of the Charter Québécois, above mentioned, note 79.

* ⁴⁷⁷ In this moment, a virulent debate is held in France on the private and public correspondence on Internet. Indeed, new Project LEN is setting up a new system which states that all electronic mail would be from now on public. (article 1st C of the bill adopted by the French National Assembly in second reading, above mentioned, note 227).