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

2) European relativism : a more mitigated solution

It should be recalled that it « freedom of expression is the rule and it enjoys the a legal protection of most level as well at the national level as international »^478(*). In Europe, this freedom also constitutes a fundamental principle for a democratic company^479(*). The restrictions exerted on this right must respect the criteria of article 10 of the European Convention of the Humans right. These measurements must be envisaged by the law^480(*). Moreover, this text gives on the freedom of expression a transborder character. Indeed, the Member States can be opposed to freedom of movement information only in the respect of paragraph 2 of this article^481(*). This last allows the emergence of European common standards thus.

Recently, Europe knew a wave of fight against racism and xenophobia. Indeed, of the important French decisions intervened such as the business Yahoo^482(*) and the business I Show^483(*). They show the passion of France for the fight against racism, negationnism and the revisionist on Internet. Moreover, some regarded these decisions as a threat for the freedom of expression « even like a chief of work of futility, because of the transnational character of Internet »^484(*). The judges, thanks to these last, want to prohibit all forms of racism on the French territory and even to impose it on the other countries, as in the United States for example^485(*). However, the latter refuse this contrary design with their First Amendment. France founded many limitations with this law, envisaged by multiple laws. This freedom thus is very framed. This design testifies to « French taste for all to legislate, sometimes until our consciences, as one still saw with the law on the sects »^486(*). All cannot thus be said in France. This tendency to all to legislate brings a certain concern since from now on, a moved word can involve continuations.

The same applies to the pedophilia which knows many legislative interventions. Indeed, the European countries want to dam up this activity which uses the children. The freedom of expression cannot be asserted in this case of figure because the protection of the children is larger, even if the child is touched indirectly. For example, in Spain a minor was done stopped to have diffused material paedophile^487(*) and in the United Kingdom, five arrests took place within the framework of operations anti-pedophilia on Internet^488(*). There is several similar cases which increase with the wire of time on the network. Moreover, the police officers are overflowed by the number growing of sites paedophiles^489(*). France has a very reprehensive regulation for this kind of facts, as we already could expose it. Only one image putting in scene a minor is punishable by the law^490(*). Moreover, the exchange of photographs became something of banal and very widespread on the network in particular on Internet Relay Chat (IRC). However, true « drive out » to the paedophiles installation itself even if it is still difficult to catch them because the majority is abroad.

It should not be forgotten that Internet is a fabulous means to be made hear on all the subjects with the detriment of the authorities or the authority of the country, which sees of an evil eye that certain ideas are propagated there. Indeed, « for the first time, each one can, thanks to Internet, to address itself to the remainder of planet, without having to require authorization of anybody. What to frighten all those which want to control information, to supervise what is said, to filter what their citizens can learn from their turpitudes and their exactions »^491(*). The undemocratic countries are the first to prevent the information flow on the network. They prefer to block, to even remove the accessible contents on Internet. Consequently, it is preferable to better control Internet to avoid the overflows to proceed automatically to the censure. The latter is however exerted concretely, in particular by Douanes Canada^492(*). Then should not one exert same control on Internet ? Of course, the mass of information is not the same one what poses a true problem.

In short, the freedom of expression brings a rather paradoxical debate since on the one hand, the fundamental principles of a democracy want that us meanings all kinds of speech and on the other hand, it is impossible to authorize certain intrigues under cover of this famous freedom of expression. Indeed, all should not be allowed on the network. The freedom of each one finishes where that of the others starts. Each one of us opens out and thinks differently what necessarily returns in conflict with the freedom of expression. For this reason it seems difficult to slice on the following questions : for or the freedom of expression counters on the network ? Should it be censured ? The question is especially to know if there are other means less Draconian than the censure. For the moment, the legislations found a means of checking the contents looked by the young people while trying to make the network more transparent thanks to the identification.

* ⁴⁷⁸ P. MACKAY, loc. cit. note 27.

* ⁴⁷⁹ Thoma C. Luxembourg and Lingens C. Austria, above mentioned, note 438.

* ⁴⁸⁰ It is about the law in the broad sense since it includes/understands the statute law but also jurisprudence  : Court eur. D. h., Sunday Times (n°1), 26 avr.1979, § 47.

* ⁴⁸¹ PF. DOCQUIR, loc. cit., note 293, §24.

* ⁴⁸² UEJF and Licra C. Yahoo  ! Inc. and Yahoo France, above mentioned, note 25.

* ⁴⁸³ I show C. AFA and others, above mentioned, note 47.

* ⁴⁸⁴ J.R. REIDENBERG, loc. cit., note 170.

* ⁴⁸⁵ Yahoo! Inc. v. The league Counters racism and the Anti-semitism, 169 F. Supp. 2D 1181 (N.D. Cal. 2001); US SHORT DISTRICT, above mentioned, note 49.

* ⁴⁸⁶ E. DUVERGER and R. MÉNARD, COp cit., note 119, p.38.

* ⁴⁸⁷ Detenido a menor por to difundir pornografía infantil in Internet, Noticias, 08-09-02, on line on: delitosinformaticos.com < http://delitosinformaticos.com/noticias/103150194256030.shtml > (site visited on February 11, 2004).

* ⁴⁸⁸ Five arrested in Internet child porn raids At dawn, 10th september 2002, on line on: this is local london < http://www.thisislocallondon.co.uk/news/headlines/display.var.623747.Headlines.0.html > (site visited on February 11, 2004).

* ⁴⁸⁹ David BATTY, Police force action against inadequate Net paedophiles «completely», February 10, 2004, on line on: Guardian Unlimited < http://society.guardian.co.uk/children/story/0,1074,1144895,00.html > (site visited on February 11, 2004).

* ⁴⁹⁰ See French Penal code, art 227-24.

* ⁴⁹¹ E. DUVERGER and R. MÉNARD, COp cit., note 119, p.152.

* ⁴⁹² NR. COLLARD and P. NAVARRO, COp cit., note 396, p. 36 and suiv.