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

CHAPTER 2

PALLIATIVES WITH THE EXERCISE OF THE CENSURE : ALTERNATIVE AND COMPLEMENTARY SOLUTIONS

The actors of Internet network, and even the governments, encourage the development of solutions alternative or complementary to the right which rest on the use of techniques. In a general way, they make it possible to mitigate the exercise of the censure, very criticizable and very criticized solution, but especially they make it possible to answer the problems caused by the international aspect of Internet. Thus the autoreglementation is « presented like a more flexible alternative, more adapted to realities of the network, even more democratic than the public regulation »^524(*). There are several forms of autoreglementation. Initially, quasi-legal controls which were developed by various processes (I) then, the international aspect of Internet which obliged the States to develop a world regulation (II), a long-term solution.

Section I : Quasi-legal controls

The quasi-legal controls carried out on the network require a combination of various techniques of regulation which can be done on two levels. On the first level, it is a question of controlling information with the diffusion. These processes can be regarded as a source of right (§1). On the contrary, on the second level, control is carried out with the reception of information. In this case, they are techniques resting on the basis of voluntariate (§2).

Paragraph 1 : Controls of the diffusion : a source of right

It is necessary to make Internet network surer in order to make safe disseminated information and to protect the Net surfers who y « surfent » against the illicit contents^525(*). It is thus important « to found rules of good control in the international environment and the cyberspace »^526(*). Thus the civic spirit of the Net surfers was requested and that appeared Lex electronica with the uses and it « Netiquette » (A), then them « codes of good control » (B).

A) Lex electronica : uses and the «Netiquette»

Initially, it should be specified that « Internet is not No man' S Land legal where it would be imperative to legislate »^527(*). Indeed, as of its origin, the community of Net surfers laid down homogeneous rules of control based on the operation of the Community model in which the individual must conform to the rules, under penalty of seeing itself reproaching its behavior by the others. There is a true pressure on behalf of the community which dictates these rules. For example, on the forums of discussions, of the Net surfers saw themselves reproaching their behavior and thus, were made exclude from the group^528(*).

This form of autoreglementation released from the principles constituting Lex electronica. It can be defined as indicating « sets of rules framing the activities being held in virtual space resulting from the connection of the computers according to protocols Internet. Lex electronica is presented in the form of a unit comparable with Lex Mercatoria governing certain relations between tradesmen in the international transactions »^529(*). It thus institutes rules of practices of correct operation of the network. This standard constitutes the reference of behavior honest, useful and correct to adopt on Internet. It is not the product of an official institution, but the result of actions followed, wished and respected on behalf of the Net surfers. They feel obliged, even constrained to follow these rules. Moreover, these standards have a certain obligatory value whose sanction is, in general, the exclusion of the person who enfreint rules.

Lex electronica also contains like source the uses and it « Netiquette ". The uses constitute usual rules released by the practice which accept them and usually follow them in their activity in margin of the traditional legal institutions. There is thus a follow-up of the principles. These uses are more close to the users, because these are the latter which set up them in order to govern the interindividual relations on line. « Netiquette », a generalized habit, « mean whole of principles intended to ensure a certain order in space cybernetic which aim at a large variety of subjects or behaviors and formulated in a relatively precise way »^530(*). It is to some extent a code not written, enacting the good behavior to be followed by all the Net surfers without exceptions. However, for some time, of new practices develop by more really not complying with these rules such as for example, the Spamming^531(*) or the invasion of many newsgroups by publicity.

These uses truly appear minimal without being a guarantee of respect on behalf of all the Net surfers. They remain nevertheless very important for a better regulation of the network since « their evolution faster and adapted better to the changes represents the expression of an unceasingly renewed consensus »^532(*). This characteristic makes it possible to take into account the technical evolutions and thus to solve the future problems. Moreover, it should be specified that the official right, even if it applies to a great number of legal situations occurring to the network, does not allow such a control as soon as an element of extraneity between concerned. Indeed, Internet being transborder, the effectiveness of the official right is limited in its application since it is not easily applicable out of its territory. Thus « the autoreglementation constitutes the most promising avenue to stop the inappropriate contents in the Internet^533(*). However, the law must keep its dominating place because certain behaviors are too serious to escape [this one] »^534(*). Moreover, the autoreglementation is a form of control to randomness and limited.

Associations or other organizations also take part in the development of the standards and the rules relating to Internet. They set up codes of good control which come to constitute another source of right.

* ⁵²⁴ C. PAUL, COp cit., note 17, p.49.

* ⁵²⁵ See the 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.

* ⁵²⁶ C. HULTMARK, loc. cit., note 502, p. 271.

* ⁵²⁷ Y. BISMUTH, loc. cit., note 181, p. 184.

* ⁵²⁸ TGI Paris, 1st CH., 1st sect., Dec. 12, 2001 (Com. Com. électr. June 2002. Com. n°92 and obs.)  : an association excludes a Net surfer who had used of the forum at ends other to which it was dedicated.

* ⁵²⁹ P. TRUDEL, the responsibility on Internet, loc. cit., note 255, p. 3  ; See also P. TRUDEL, «  Lex Electronica  », loc. cit., note 10, 221-268.

* ⁵³⁰ Definition borrowed from the authors P. TRUDEL, F.ABRAN, K.BENYEKHLEF and S. HEIN, Right of the cyberspace, COp cit., note 115, p. 15-4.

* ⁵³¹ Spamming  : development of direct marketing not requested.

* ⁵³² P. TRUDEL, «  Lex Electronica  », loc. cit., note 10, p. 242.

* ⁵³³ CANADIAN STRATEGY FOR THE SEDENTARY, CAREFUL USE AND PERSON IN CHARGE FOR INTERNET, COp cit., note 3, p.13.

* ⁵³⁴ A. LEPAGE, «  Freedom of expression, responsibility and forums of discussions  », loc. cit., note 466, p. 20.