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

Paragraph 2 : The desire of identification on the network

One of the points black of Internet is that it is difficult to supervise it for multiple more valid reasons all the ones the others. However, the motivation of the legislators to control it is before all the protection of the minors, then obviously, the stop of the made infringements. The problem is that the network makes it possible any individual to be expressed or do what he wants without being afraid of fallen down of his acts or his words. Indeed, the absence of identification on the network, supplied with the use of a pseudonym (nickname), involves a feeling of being able and freedom which pushes the Net surfers with going further in their remarks than in the real life. They forget them thus « limits imposed by the right in the exercise of the freedom of expression »^493(*). The transparency could solve much problems. But, the identification of the Net surfers appears difficult, more especially as anonymity is a corollary of the freedom of expression (A) and that, even if the new laws show a tendency to want to identify the connected people (B), many individuals rise against, by feeding the debate.

A) Anonymity : corollary of the freedom of expression

Anonymity thus constitutes a corollary of the freedom of expression. It is about an integral part of the latter. Indeed, anonymity makes it possible many people to be freely expressed without fear of reprisals or of « what will say one ? ». These last feel lighter and protected by this famous anonymity. Moreover thanks to this last and to the freedom of expression, the racist sites or negationnists are not close disappearing from the network. This anonymity is guaranteed by several European and French texts. Indeed, this principle is recognized by articles 8 and 10 of the European Convention of the Humans right. According to these texts, each individual is entitled to the respect of his private life and his correspondence and « there can be interference of a public authority in the exercise of this law only in so far as this interference is envisaged by the law » and that it constitutes a measure necessary in a democratic company. It also states that any person is entitled to the freedom of expression, right which includes/understands freedom to receive or to communicate information or ideas without the interference of a public authority and without consideration of border. Thus any person is free to communicate what it it likes without fearing that the authorities come to control its remarks because that would encroach on its private life. The Net surfers thus have the right not to be identified on the network and thus to express themselves freely. Moreover, the Council of Europe recognized a certain right to anonymity in order to ensure a protection against the monitorings on line and to support the free expression of information and ideas^494(*). However, because of the increase in the illicit contents circulating on Internet network, it would seem that a tendency to identification develops.

This right to anonymity is also guaranteed by the French laws in particular by the Law relating to daily safety^495(*). Indeed, this law points out the general principle of anonymisation stated in article 29 modifying the L32-3 article of the Code of the stations and telecommunications. This last lays out that « operators of telecommunications (...) are held to erase or make anonymous very given relating to a communication as soon as this one is completed ». Moreover, anonymity is a right protected by the French Civil code to article 9 which lays out that « each one is entitled to the respect of its private life ». But also by various laws such as the Law relating to data processing, the files and freedoms of January 6, 1978^496(*). It states in its article first that data processing does not have « to conflict neither with the human identity, neither with the humans right, neither with the private life, nor with the personal freedoms or public ». The personal data must be protected and controlled. Anonymity is thus an integral part of the dimension of the protection of the life deprived as well as the freedom of expression. Any person must be able to be free not to name herself and its personal data do not have to be used inopportunely by no matter whom or for anything.

Quebec also has a regulation on the protection of the private life founded on the Civil code^497(*) and the Charter of the rights and freedoms of the person^498(*). The personal information is not generally revealed, unless the government or the legal authority does not have the right of it. However, of uncertainties reside in the discretion of the supplier. Indeed, some raise the following question : « what of the supplier of services Internet happenhappens who communicated to a third the code of user, the password and static address IP of his customer without his permission ? »^499(*) In theory, this information belongs to the private life because they make it possible to collect personal information on the Net surfer. This is why these data can be communicated only to one legal authority, guarantor of the personal freedoms. A supplier cannot thus communicate to thirds data in personal matter relating to his subscribers, except within the framework of a legal procedure. This interpretation respects the rights of the people and more particularly the right to the private life.

Nowadays, technology makes it possible to very easily recover personal data on the network with our detriment. It is thus important to pay attention and to hide as much as possible very given presenting a personal character. The data-processing hackers or other pirates can recover this information and use them in an illicit way. To be anonymous can prove to be a sedentary means to avoid these nuisances. Moreover, the network provides all what it is necessary to sail in an anonymous way on the fabric. It does not matter that we are beginner or an expert of data processing, there is always somebody, either a site or a Net surfer, to help us in the event of difficulty.

On Internet, the Net surfers think that the use of anonymity forms integral part of the exercise of the freedom of expression in particular on the forums of discussion. However, a decision of the supreme Court of the State of Virginia recalled that « the First Amendment of the American Constitution, devoting the principle of the freedom of expression, did not guarantee the anonymity of the person »^500(*). For the United States, the freedom of expression is not the corollary of anonymity and on the contrary, it would have as a corollary the responsibility. Moreover, a question arose of knowing if it were necessary to regard anonymity as not allowing more the application of the mode of exemption. In theory, the first person in charge is the author of the contents but if it is not identifiable, subsidiarily, the responsibility for the PSI will be required. Anonymity would thus constitute one of the factors starting of the responsibility^501(*). Thus the idea appeared that the network needed more than transparency and traceability in order to fight the illicit contents.

* ⁴⁹³ A. LEPAGE., «  Freedom of expression, responsibility and forums of discussion  », loc. cit., note 466.

* ⁴⁹⁴ The Council of Europe specifies nevertheless that the Member States can take measures to find the trace of those which are responsible for punishable acts  : Etienne WÉRY, the Council of Europe puts forth a declaration on the freedom of communication on the Internet, June 19, 2003, on line on  : right and new technologies < http://www.droit-technologie.org > (site visited on February 11, 2004).

* ⁴⁹⁵ Law relating to safety daily, above mentioned, note 96.

* ⁴⁹⁶ Law n°78-17 of January 6, 1978 relating to data processing, the files and freedoms, in line on  : Légifrance < http://www.legifrance.gouv.fr > (site visited on February 11, 2004).

* ⁴⁹⁷ See D.C.Q, art 35 and suiv.

* ⁴⁹⁸ Charter Québécois, above mentioned, note 79, art 5.

* ⁴⁹⁹ Sebastien LAPOINTE, «  Your Internet provider is it discrete  ?  », (2003) 35 J.B. 13.

* ⁵⁰⁰ Supreme Court off Virginia, America Online, Inc. v. Nam Tai Electronics, Inc, Nov. 01, 2002, on line on: < http://www.valawyersweekly.com > (site visited on February 11, 2004); See article A. LEPAGE., «  Freedom of expression, responsibility and forums of discussion  », loc. cit., note 466, 20.

* ⁵⁰¹ Indeed, certain authors indicate that the supplier must provide the identity of the owner of the site accused to the legal authorities to escape his responsibility. If not, it encourages the development of the illicit activities under cover of anonymity. The same applies under article 14 of the Directive on the electronic trade. Indeed, the supplier of lodging profits from the exemption of responsibility if it sticks strictly to its bus role by sheltering anonymous sites, it exceeds his role. (See SANTIAGO CAVANILLAS and A., COp cit., note 214, p.44  ; to also see C. ROJINSKY, Community approach of the responsibility for the actors of the Internet, loc. cit., note 15). It thus seems that anonymity is one of the factors release of the responsibility for the people receiving benefits of lodging. (See stop TGI Nanterre, 8 December 1999, above mentioned, note 159 or Gas. Stake. 2000.2, note Hubert BITAN  ; Decision reformed in call by a stop of the Court of Appeal of Versailles on 8 June 2000, above mentioned, note 162). On the other hand, for others, the supplier of lodging continuous to profit from the exemption even if it does not ensure the identification of the persons in charge for the lodged sites. (See T. VERBIEST and E. WERY, «  The responsibility for the suppliers of services Internet  : last jurisprudential developments  », loc. cit., note 161, 169).