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

B) Anonymity with the identification : a well fed debate

Since its origins, Internet is regarded as a space of not-right maintained by the idea that we all are anonymous on the network^502(*). This belief generated the commission of the majority of the infringements. However, it is not completely true since the police officers or the companies can recall the Net surfers thanks to various techniques. Indeed, there is the technique of the cookies, the specialized software making it possible to identify and collect information concerning us and, address IP^503(*). It is sure that these means do not allow an unquestionable identification but it remains however possible.

The identification on Internet must be reinforced if we want to find a person in charge and to thus make apply the right. Indeed, « a responsibility does not exist without identification »^504(*). The first person in charge, as we already could mention it, is the content provider which is anything else only the person who produced the illicit message. So that the mode of responsibility centered on the author for the act can function correctly, it is necessary to be able to identify it and to recall it on the network. It is because of this anonymity that the responsibility for the PSI was brought into play. It is indeed difficult to assign an individual who preserved his anonymity from where need for bringing into play the responsibility for the supplier at the place of the author of the act. Moreover, the Council of State A clearly shown in one of its reports/ratios. Indeed, it states that « if anonymity is an illusion on the networks, it is often difficult to detect the real identity of the individual having made the infringement; it thus appears essential to improve the traceability of the messages and the identification of the actors in order to be able to take action of responsibility »^505(*). The identification on the network is thus announced important.

The difficulty which arises with the identification is that that touches the protection of the private life and human dignity. Indeed, while asking the Net surfers to be identified, of the abuses can occur and the data collected can then be used and revealed with no matter whom. By consequence, many Net surfers are afraid that this collection serf to supervise them and to recall them. For example, we can notice that the companies use some of these data to send not requested publicities. It is then legitimate to worry more especially as it is very simple to have access to private data on the network^506(*). However, « it will be up to the operators to take the required measures to prevent a use of these data at ends other than those fixed by the law »^507(*). Moreover, it should not be forgotten that only the legal authorities will be able to require the lifting of anonymity or the personal data communication in order to preserve the identity of the Net surfers. Moreover, the higher Court of Ontario ordered with a PSI to provide the identity of a Net surfer, author of a defamatory courriel in order to be able to start an action of responsibility^508(*).

The majority of the new laws set up a system of identification in order to recall the possible delinquents and thus to put an end to this anonymity. The events of September 11 2001^509(*) occurred in the United States reinforced this tendency to the identification and traceability^510(*). Indeed, France is an example with its Law on daily safety^511(*). This law refers, as we could expose it in a preceding development, with the anonymity of the contents of the exchanged correspondences or consulted information. However, even if the principle « of anonymisation »^512(*) is recalled, reality is very different. Indeed, for reasons of safety, it acts more than one obligation of identification controlled rather than of a right to anonymity^513(*). This last corresponds in fact to a right to make known itself of the public only through the use of a pseudonym since the suppliers must collect a minimum of information on their customers. They have the obligation to preserve the personal data and to place them at the disposal of the legal authority. The Law of August 1, 2000^514(*) poses, with regard to these technical professionals, an obligation of collection and of detention of information on the people lodged failing this, they engage their civil or penal liability. They must also place at the disposal of the public a certain number of information as with the legal authorities which can require communication of it. It institutes thus « a legal status of transparency and excluding any anonymity from the creators and editors from services from communication on line »^515(*). However, it seem that all these people receiving benefits do not collect the desired information or do not check the authenticity of the latter what does not contribute with the identification of the customers and the will of transparency on the network.

Europe decided to identify the actors of the network, in order to make it sedentary. Indeed, article 5 lays out that the Member States take care that any person receiving benefits makes possible « an easy, direct and permanent access, for the recipients of the service » with information allowing to identify it^516(*). Of course, this obligation adapts very badly with the general framework to freedoms^517(*). Moreover, the Commission of the protection of the private life indicates that the provisions of the Directive on the electronic trade do not allow « a systematic identification of the users, under penalty of transforming the suppliers of access into auxiliaries of police force within the framework of investigations in general matter »^518(*).

Project LEN^519(*) takes again this provision by imposing the identification of the authors of contents. It seems logical to put a little more transparency on the network since it is necessary that each supplier is able to provide the identity of his customers in particular within the framework of an investigation of police force^520(*). However, it should be specified that this project preserves the anonymity of the Net surfers. Indeed, the nonprofessional people publishing a service of public communication on line are held only to provide a minimum of information to the public. Moreover, the suppliers are fixed with the incontestable professional secrecy with the legal authorities. The project also envisages sanctions in the event of nonrespect of these provisions. The use of the pseudonym is the means recommended for France and it appears the best solution to satisfy a good number of people.

The LCJTI^521(*) also envisages a system of identification of the Net surfers, but while trying to guarantee the protection and the confidentiality of the personal information. It envisages the conditions of use of the means likely to ensure the confidentiality of the documents. Article 40 lays out that « the identification or identity check must be done in the respect of the law ». It is also envisaged in article 41 that a technological document being used to identify a person must be protected from the interception when it is preserved or transmitted on a communication network, in order to avoid the usurpation of the identity of the person concerned. Lastly, article 43 states that no one cannot require that the identity of a person be proven by means of process which carries reached to its physical integrity. It is also interdict to recall a person unless the law does not envisage it expressly. The use of biometrics is also envisaged by the law in articles 44 and 45.

To conclude on this point, anonymity is a sedentary means of « surfer » on the network without being identified by people dishonest persons. However, it is necessary it to acknowledg, it is as because of the latter as Internet became one « jungle » where some were believed completely free of saying what they wanted thanks to the right to the freedom of expression. The selected intermediate solution, is to allow the pseudonym to the Net surfers and to provide personal information only to the only legal authorities. This choice respects the rights of the person thus and corresponds more to the idea of a free and democratic company where Internet remains a space of freedom.

Thus Internet remains a place of freedom and in addition, a place of proliferation of illicit or offensive contents which appear difficult to remove or to regulate in a truly effective way without carrying reached to basic rights such as the freedom of expression or the right of the people. To cure or try it to apply a brake at it, the solution adopted by the States was the censure. It is about radical a enough means for free and democratic companies. It should all the same be specified that the countries tried to find a balance between a total freedom and a complete censure of the contents considered to be illicit or prejudicial on the network. This balance is difficult to reach, as we already could expose it. Moreover, one should not forget only the network disregards geographical border, which limits the application of the national laws. Indeed, the States can govern only the activities proceeding on their own territory. This restriction imposes necessarily the use of other means to supplement the legislations which cannot always be with « the point of technology ». However, it should be specified that as of its origin, the network used already these processes. Indeed, it was autoréglementait thanks to the development of average techniques of control set up by the Net surfers and the professionals of the network. This autoreglementation appeared insufficient. The right had to intervene by the means of laws in order to control the illicit contents coming from all planet. However, these techniques have a considerable role in the regulation of Internet network^522(*) since they make it possible to supplement the new lacunar legislations but especially, they adapt perfectly to this new mean of communication^523(*).

* ⁵⁰² Christina HULTMARK, «  To develop legal systems and a good morality for the Internet  », in Teresa FUENTES-CAMACHO (to dir.), COp cit., note 36, p.271, on page 272.

* ⁵⁰³ Each Net surfer sees himself allotting such an address to the beginning of each connection. He makes it possible to recover the contents of a Web page following a request of the Net surfer.

* ⁵⁰⁴ A. HAMON, COp cit., note 5, p. 101.

* ⁵⁰⁵ COUNCIL OF STATE, COp cit., note 300.

* ⁵⁰⁶ Indeed, certain sites make a demonstration by which they give all the characteristics of the computer, the software used and installed, address IP and of many other supposed data being private. See for example the site of < http://www.anonymat.org/ >.

* ⁵⁰⁷ Eric BARBRY, end of anonymity on Internet: The law relating to daily safety pointed out the general principle of anonymisation. But reality is quite different, June 11, 2002, on line on  : The Newspaper of the Net < http://www.journaldunet.com/juridique/juridique020611.shtml >.

* ⁵⁰⁸ Irwin Toy Ltd. v. Doe, [2000] O.J. 3318 (Sup. Ct.); to also see Philip Corp Services. v. John Doe, (1998) Short spins n° 4582/98 (Have. Ct. (Gen. Div.)).

* ⁵⁰⁹ It is about the attack which has occurred against the two binoculars towers of Wall Trade Center in New York in the United States.

* ⁵¹⁰ See the article Pascal JAN, «  State of need against State of law (in connection with the law on daily safety)  », (2001) 43 Dalloz 3443- 3445.

* ⁵¹¹ Law relating to safety daily, above mentioned, note 96.

* ⁵¹² E. BARBRY, loc. cit., note 507.

* ⁵¹³ Id.

* ⁵¹⁴ Law of August 1, 2000, above mentioned, note 17, art 43-9 and 43-10.

* ⁵¹⁵ Mr. LIVING and C. the STANC (to dir.), COp cit., note 358, n°2809, p. 1586.

* ⁵¹⁶ This article according to the first European Commission Report on the application of the Directive 2000?31?CE, guaranteed transparency and better information concerning the identity of a service provider and his place of establishment. (COMMISSION REPORT IN THE EUROPEAN PARLIAMENT, First report/ratio on the application of the directive on the electronic trade, COp cit., note 225, p.10).

* ⁵¹⁷ C. ROJINSKY, Community approach of the responsibility for the actors of the Internet, loc. cit., note 15.

* ⁵¹⁸ «  Opinion of the Commission of the protection of the private life n°44/2001 of November 12, 2001  », (June 2002) 12 Ubiquity, Brussels, 103, 108.

* ⁵¹⁹ Project LEN, above mentioned, note 17.

* ⁵²⁰ This identification of the subscribers was a measure recommended by the Council of State in his report/ratio Internet and the networks numerical, COp cit., note 300, p. 188.

* ⁵²¹ LCJTI, above mentioned, note 252.

* ⁵²² See considering it 5 of the Decision n°276/1999/EC, above mentioned, note 422, p. 408.

* ⁵²³ «  The right being stripped vis-a-vis Internet, the deontology, the science which indicates the rules of a profession, are requested once again to mitigate the difficulties encountered by the right  »: Y. BISMUTH, COp cit., note 181, p. 184.