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

CONCLUSION

Internet network comprises a diversity of contents of which some should not y have their place. Indeed, the illicit contents tend to proliferate in a rather significant way. For example, the pornographic sites represent a very lucrative market which enormously brings back money to their authors^591(*). They are so many that they became banals and are exchanged easily between the Net surfers, not always major. The minors are thus the first victims of these contents. For this reason it was important to intervene in order to avoid the possible damage in their opposition.

New laws, after a long development process, then came into effect to slow down these abuses. They set up a system of censure based on the responsibility for the PSI. Indeed, the illicit victims of contents being unable itself to identify the true author of the damage continued the PSI in order to obtain repair. Thus these people receiving benefits were held responsible, initially, automatically for finally, in the second time, to be it conditionally.

This new system rests on the identification of the true person in charge, the content provider. This is why the new laws set up systems of identification. Nevertheless, it should be recognized that anonymity is a sedentary means of « surfer » on Internet without being importuned by people dishonest persons. The intermediate solution between being completely anonymous and to be truly identifiable on the network, is the use of pseudonym. This choice corresponds best to the current concerns of regulation and freedom.

Moreover, this new mode of responsibility combines with the common right which thus does not disappear. However, it should be specified that this system is not satisfactory on certain points, even if it is still too early for truly knowing the impacts of these new legislations. Indeed, the PSI are found from now on to exert a role of judge or police officer of the illicit contents circulating on the network. They will have promptly to withdraw or block all illicit information of which they are informed. They are thus obliged to appreciate the illicit character of the litigious message without any legal intervention and, on request of a Net surfer.

The legislator, in their offering such a capacity, wished a fast remedy to remove the illicit contents circulating on the network. But the transnational character of Internet makes so that the removed contents can reappear on another waiter and in another country instantaneously. From where the problem of knowing how to repress effectively what is illicit in a country and legal in another.

This study enabled us to note that the legislators, Canadian and Europeans, chose the censure as sine qua non solution with the problems of the illicit contents conveyed on Internet. They tried to meet the needs for the Net surfers by finding a balance between on the one hand, a total freedom and on the other hand, a complete censure. This choice can appear, at first sight, like saying himself misfit for free and democratic countries. But, the massive increase in the illicit contents made necessary, even essential. However, it should not be forgotten that its exercise must be framed using conditions well defined in the texts and to remain exceptional.

The problem of this new system is that abuses can provide. The latter would carry inevitably reached to the principle of the freedom of expression. Indeed, one should not lose sight of the fact that Internet is, at the base, a place of freedom where any speech can be known as within the limits of the law. Of course, the national laws badly had to apply to Internet because of its transborder character. It is there, moreover, the problem : how to correctly apply national legal concepts in a transnational context which erases any idea of territory and fact entrechoquer of the divergent national designs, even sometimes contradictory ? Thus to privilege the censure with the detriment of the freedom of expression, east cannot be not the solution to be developed. The freedom of expression is the principle which makes so that Canada and Europe, are democratic countries.

It is for all these reasons that the autoreglementation is an alternative and complementary way to remove the illicit contents on the network. It is thus necessary to sensitize and educate the Net surfers with realities of Internet by the use, for example, of software of filtering. This point of view is confirmed by the recommendation of the Forum of the rights on the Internet dating from February 11, 2004^592(*). This last request in particular to support the development of multiple selection of resources lines recommended to the public young people, to constitute a directory of sites recommended, to develop information on the tools for parental control, to promote the voluntary description of the contents on the Web and to inform and sensitize the adults and the children with the control of the uses of Internet.

It is undeniable that the long-term solution will be the installation of an applicable international law on Internet network. This process is still embryonic and will require many time and negotiations on behalf of the countries.

The future of Internet seems very traced even if many things remain to be made. Indeed, of multiple punishable behaviors appear from now on on the network. The law is found vis-a-vis new infringements such as the setting in line of pharmaceutical products without ordinance, them « spams » and hacking of music. The coordination of the legislations and the cultural and philosophical differences of the various countries is one of the next stakes of the regulation of Internet.

* ⁵⁹¹ «  The sale of contents and services «for adults», i.e. with erotic or pornographic connotation, would have represented in 2001/2002 more than 70% of the incomes of the sale of digital components near general public in Europe and in the world, according to the institute Jupiter MMXI  »  : RECOMMENDATION OF THE FORUM OF THE RIGHTS ON THE INTERNET, the children of the Net  : The exposure of the minors to the contents prejudicial of the Internet (I), COp cit., note 6, p.10.

* ⁵⁹² ID.