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

B) Convention on the cybercriminality

The countries understood that the only true manner of fighting the presence of criminal contents is the international co-operation by the means in particular of international texts such as Convention on the cybercriminality (2). Nevertheless, Internet is marked by an absence of borders and the immateriality of the communications. These international characteristics make complex the regulation of the network (1).

1) International dimension : a disadvantage to fight against the cybercriminality

Solutions developed by the national legislations, such as the censure or various controls, cannot be truly effective if the countries do not show more will to cooperate. Indeed, the borders not being delimited, it appears difficult to regulate the network by the only national laws of the countries. The international aspect always posed problems for any field and even more for Internet.

The legal mutual aid still runs up against the various legislations and the often heavy and complicated procedures. The countries do not seem yet ready to want to lose a share of their national sovereignty. The latter is always what raises really difficulty since each country wants to keep a share of control on Internet network. The concrete example of the Yahoo business exposes this position since France wanted to impose its own right to the network. However, it is obvious that Internet requires an international regulation, considering its particular characteristics. If each country imposes on its neighbor his national law, the abolition of the illicit contents is not ready to be carried out quickly.

The Canadian laws seem to have more and more an off-shore range. Indeed, the State has a competence rationae materiae which gives him the possibility of continuing one of its citizens for any crime committed by this one out of the territory. But it does not confer capacity of execution of the sentences and repression out of the borders without an effective international co-operation between the States.

The international co-operation is difficult to implement. Many points must be gathered in order to find the points common and thus to harmonize the legislative rules on the network. The countries, for the majority, seek international solutions to reduce the emission of the illicit contents, as we could see it previously, thanks to many organizations and round tables or any other grouping.

Thus the countries turned to the international law, means logical and appropriate vis-a-vis the absence of distance and to a high-speed circulation of information. They tried to put side part of their sovereignty and to release from the common principles in order to fight with effectiveness against technological criminality.

2) Contents of Convention

The international law starts to be set up. The States, because of the development growing of terrorism, were intended on certain points in order to fight against this last and the criminality diffused on Internet network. Thus a Convention on the cybercriminality^571(*) was adopted. It is supplemented by an additional Protocol relating to the incrimination of acts of racist nature and xenophobe made by the means of information processing systems^572(*) adopted by the Committee of the Ministers on November 7, 2002 and he was opened with the signature on January 28, 2003 in Strasbourg. Convention must contain five ratifications including at least three Member States of the Council of Europe to come into effect. On the other hand for the Protocol, it must be only ratified by five States. This protocol widens the field of application of Convention to infringements of the racist and xenophobe propaganda and facilitates the use by the Parts of the means and ways of international co-operation established in this field by Convention. This text requires of the States criminaliser diffusion of the racist and xenophobe material by the means of information processing systems. Certain countries did not sign it yet because it calls into question in particular the principle of the freedom of expression. For example, we can quote the countries such as the United States, Canada and Japan. Moreover, for the moment, there is no ratification on a total number of twenty-two signatures for this last. On the other hand, there are five ratifications^573(*) for thirty-three signatures for Convention. It enters consequently, into force following the ratification lately of a fifth country, Lithuania. However, the application of this Convention is likely to raise many difficulties because it caused sharp reactions on behalf of users' associations^574(*). Indeed, they consider that it realizes a serious risk of attack to the freedom of expression and the personal data protection.

The purpose of convention is to fight against the penal infringements made on the data-processing network such as for example, the youthful pornography, one of the most lucrative markets in the world. It was adopted by the Council of Europe on November 23, 2001 in Budapest. It founds three axes of international regulation. The first is the harmonization of the national legislations, the second is the establishment of means adapted to facilitate the control of the investigations and continuations penal on the electronic networks and the last is the installation of system of a fast and effective international co-operation. It will make it possible to strengthen the co-operation between the Member States (and non-member) and thus to set up a common penal policy on the cybercriminality, in particular by the adoption of adopted legislations^575(*). This Convention could become a world standard to fight against the cybercrime.

Canada must modify certain legislative provisions in order to respect the terms of Convention^576(*). It is indeed necessary to return the interception of legal telecommunications and to give oneself the capacity to require suppliers of services in telecommunications which they obtain average techniques allowing this interception. Modifications were already made with « Code criminal to attack henceforth more in-depth the exploitation of the children »^577(*), in particular with the Bill C-15A. France also did not ratify Convention, but it lately made approve the additional Protocol with Convention on January 28, 2004 by the Senate^578(*).

An important international conference on « challenges related to the cybercriminality » is organized by the Council of Europe in Strasbourg from the 15 to September 17, 2004. It will bring together the high political leaders, the owners of data-processing Industry and the experts coming from all planet.

A certain international co-operation was thus installation in spite of the reserve of the States to lose part of their sovereignty. This advance is quite relative, even if Convention on the cybercriminality came into effect lately. Indeed, most of the time, of the international texts are elaborate but, thereafter, are not applied in the various countries which took part in it. It is in this context that the associations followed by the private sector intervened to control planetary Internet network of manner.

* ⁵⁷¹ Id.

* ⁵⁷² Protocol of the additional Council of Europe to Convention on the cybercriminality, relating to the incrimination of acts of racist nature and xenophobe made by the means of information processing systems, above mentioned, note 68.

* ⁵⁷³ Albania ratified the Convention on June 20, 2002, followed by Croatia on October 17, 2002. Estonia also ratified on May 12, 2003, Hungary on December 4, 2003, and finally, Lithuania on March 18, 2004.

* ⁵⁷⁴ Association IRIS with twenty-eight other organizations of the civil company in the world such as Civil American Liberties Union (ACLU) in the United States, Electronic Frontiers Australia (EFA) in Australia or Equipo Nizkor in Spain, seem to be opposed to this Convention on the cybercriminality.

* ⁵⁷⁵ «  Estimating that a fight carried out well against the cybercriminality requires an international increased penal matter co-operation, fast and effective  », Preamble to Convention.

* ⁵⁷⁶ Andre OUIMET, «  The technological revolution and the access to information  », in Training service permanent, Bar of Quebec, the recent developments in right of access to information, Cowansville, Editions Yvon Blais, 2003, p.167, on page 180.

* ⁵⁷⁷ Melanie RAYMOND, «  New tendencies in criminal right  », (2003) 35 J.du B. n°3, 11.

* ⁵⁷⁸ Bill n°182 authorizing the approval of the additional protocol to convention on the cybercriminality, relating to the incrimination of acts of racist nature and xenophobe made by the means of information processing systems, January 28, 2004, on line on  : site of the Senate < http://www.senat.fr/leg/pjl03-182.html > (site visited on March 1, 2004).