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

Paragraph 2 : Specific infringements against the minors

Internet network is thus at the same time a tool for education for the minors but also a true danger to the latter. Indeed, Internet is a place where all can be without any difficulty and quickly. It presents an unquestionable danger for this category of vulnerable people^104(*) more especially as the number of Net surfers on the network has been in clear increase for a few years^105(*). The most worrying sites, in particular for the parents^106(*), are those relating to the pornography (A) and the pedophilia (B).

A) Pornography and the obscenity

The pornography^107(*) and the material obscene^108(*) always existed in our companies, and this even before the existence of Internet. At our time of great freedom, the sex, and all that surrounds it, appeared in the everyday life by the means of films, magazines, of television and now, on the network. Nevertheless, the pornography and the obscenity are much more alarming on the network than in the real life since they are free access. Nothing is easier for a minor than to arrive at images or pornographic texts. The barriers installation are of a weak protection since it is enough for the minor to cheat on his age or to get a credit card to visualize these contents. The first victims are thus the minors^109(*). Nowadays, it is of a childish simplicity to store pornographic material on a diskette or the hard disk of a computer. However, the countries have a regulation more or less appropriate to Internet concerning these infringements^110(*). In general, in fact the penal provisions of common right are applicable because they are sufficiently broad to include the diffusion on Internet and to thus protect the minors. They try to protect it by repressing the greatest number of intrigues in order to protect them from a potential danger.

The first applicable texts on Internet are the French Penal code^111(*) and the Canadian criminal Code^112(*) modified by the Law of 2001 modifying the criminal Right^113(*). This last gives a definition of the obscenity in its article 163 (8) which lays out that « is famous obscene any publication whose dominant characteristic is the undue exploitation of the sexual things, or of sexual things and of one or more of the following subjects, knowledge : the crime, horror, cruelty and violence ». The supreme Court released it « criterion of the social standard of tolerance » to determine what must be regarded as obscene or not. It is a question of objectively putting forward what the Canadians are ready to tolerate or to accept. It is thus necessary to determine the tolerance level of the company in an objective way^114(*). The same applies to France since the judges state, in a stop of January 29, 1976, that « the distinction between what is allowed and defended must be made only according to the state of development of manners at one definite time and in a given place »^115(*). By condemning the material obscene, the law also intervenes in the trade of the pornography notwithstanding the fabulous principle of the freedom of expression which will be analyzed further and at greater length in our study. For the moment, we can briefly announce that the prohibition of the simple possession of youthful pornographic material can carry seriously reached to this freedom^116(*), right guaranteed by article 2 (b) and 7 of the Canadian Charter of the rights and freedoms.

The French Penal code has provisions treating of the pornography. They are these articles 227-23 and 227-24. The first condemns the diffusion or the fact of diffusing images or representations in pornographic matter of a minor. The second text represses manufacture, the transport or the diffusion of a pornographic message likely to be seen or perceived by a minor by some means that it is and whatever is the support. The field of application is sufficiently vast to include the infringements made via Internet. Moreover, the infringement is consisted of the only fact that the minor is likely to be reached by the act in question^117(*). There is thus a true will of the legislator to protect the minor. However, a too broad field can raise certain difficulties of application^118(*). Moreover, this article comprises many inaccuracies which can bring to an arbitrary application^119(*).

On the other hand, the Canadian criminal Code specifies that « an offense whoever commits (...) has) sells, exposes to the sight of the public, or has in its possession at such an end, some writing, image, model, disc of gramophone or another thing obscene »^120(*). Contrary to the French text, the term « minor » is not mentioned but article 163.1 (b) of the criminal Code relating to the youthful pornography, refers to « an old person of less than eighteen years ». The word « minor » is thus by no means employed in article 163 relating to the obscenity. The protection of the minor thus does not seem to be the priority of the Canadian legislator concerning the obscenity. Moreover, this text applies more restricted than the French text since it is enough for this last which a minor has the possibility of seeing on the network of the pornographic images or obscenes to be worried.

The French and Canadian legislators also intervened by setting up new laws which take into account realities of the numerical era. For France, it is about the Law relating to the prevention and the repression of the sexual infringements like to the protection of the minors^121(*). This law reinforces repression with regard to the users of the communication networks and it institutes the use of a telecommunications network like Internet in aggravating circumstances for certain sexual infringements. The Canadian legislator followed the same goal by modifying the criminal Code^122(*). Following this legislation, the Canadian courts intervened in particular with decision R. v. Pecciarich^123(*). It was about the charge of a Canadian for the distribution of photographs obscenes and infantile pornography, by means of micro-computers. The judges also sanctioned the diffusion of images zoophiles while making responsible the diffuser for the message^124(*), the presence of images pornographic of minors more especially intended for a homosexual public^125(*), the remote loading of files obscenes on an electronic babillard^126(*) and finally, the presence of material obscene and youthful pornography on an electronic babillard accessible to all the subscribers^127(*).

Europe tries to take Community initiatives to stop this phenomenon or at least to try to limit it. Thus in 1996, the European Commission worked out the Green Book on the protection of the minors and human dignity in the audio-visual services and of information^128(*). In the same way, September 24, 1998, the Council of Europe put forth a Recommendation concerning the development of the competitiveness of the European industry of the audio-visual services and information by the promotion of national frameworks aiming at ensuring a comparable and effective level of the protection of the minors and human dignity^129(*).

The pornography and the obscenity thus constitute a considerable potential risk for the minor whose development and psychic one are not yet well sharpened vis-a-vis the dangers of the everyday life. However, as we could higher indicate it in our developments, the pornography always existed in a form or another in practically all the companies. It remains, very lucrative still nowadays^130(*). The supreme Court of Canada stated that « clarified scenes of sex acts which are neither force, neither dehumanizing, nor degrading do not constitute an undue exploitation of the sexual things unless they do not imply children »^131(*). The priority is thus given to the protection of the children by regulating the pedophilia and the pedopornography.

* ¹⁰⁴ See COMMUNICATION OF THE EUROPEAN COMMISSION, Delivers Green on the protection of the minors and human dignity in the audio-visual services and of information, October 16, 1996, COM (96) 483  ; to also see the site europa < http://europa.eu.int/scadplus/leg/fr/lvb/l24030.htm > (site visited on March 13, 2004).

* ¹⁰⁵ According to the illegal and offensive contents diffused in Internet (CANADIAN STRATEGY FOR THE SEDENTARY USE, CAREFUL AND PERSON IN CHARGE FOR INTERNET, COp cit., note 3, p 6), March 30, 1999, Canada became the first country to connect all its schools and public libraries with Internet. In France, in July 2001, the French Net surfers were approximately 8,5 million with surfer. There was an increase of 16% compared to the end 2000  : France and safety on Internet, on line on  : Safer-Internet < http://www.saferinternet.org/news/francefr.asp > (site visited on March 13, 2004).

* ¹⁰⁶ Id.  : according to a study carried out in 2000, 77% of the French population are worried by the presence of the pornography on the network.

* ¹⁰⁷ The pornography is the representation of things obscenes intended to be communicated for the public (P. ROBERT, COp cit., note 21, p. 1728). It is also of the obscenity, the reference to representations of a sexual nature, the incentive with the vice. This definition is borrowed from the author Valerie SÉDALLIAN in her Droit work of the Internet  : regulation, responsibility, contracts (Cachan ÉditionsNetPress 1997, p 81).

* ¹⁰⁸ To be obscene is the fact of wounding delicacy by coarse representations of sexuality (P. ROBERT, COp cit., note 21, p. 1514).

* ¹⁰⁹ R.C. Tardiff, C.Q. Joliette, J.E. 99-291, AJDQ (1999) n°2219, p.895  : The children need protection, more than any other category of anybody.

* ¹¹⁰ Id.  : the State must be able to use Internet if it realizes that crimes are perpetrated there. The police officers must thus be authorized to create Internet sites in order to discourage the people eager to get material of youthful pornography.

* ¹¹¹ French penal code, 100e edition, Paris, Dalloz, 2003.

* ¹¹² C. Cr., above mentioned, note 44.

* ¹¹³ The criminal Code was modified by creating new infringements and other measurements to protect the minors against the sexual exploitation, in particular by the use of Internet  : Law of 2001 modifying the criminal Right, above mentioned, note 75.

* ¹¹⁴ Towne Cinema Ltd Theaters. C. The Queen, [1985] 1 R.C.S. 494. (J.Dickson)  ; R.C. Butler, [1992] 1 R.C.S. 452  : These businesses relate to the constitutionality of criminal article 163 Code. They state that the criterion of the social standard of tolerance takes account of the standards of tolerance of the whole of the company and not only of the standards of tolerance of a fraction of the company; Furrier C. the Queen, [1986] R.J.Q. 595  : the criterion to define indecency is the same one as that for immorality and the obscenity, i.e. that to objectively evaluate the degree of tolerance of the Canadian company.

* ¹¹⁵ CA Besancon, 29 janv. 1976, J.C.P. 1977. II. 18640, Delpech NOTE  ; C.cass. Paris, Nov. 13, 1973, Gas. Stake. 1974. 1. Somm. 114. The courts must thus take into account evolutionary elements which change with time, the place, the circumstances, the cultures and manners. These concepts raise difficulties with the judges who must express in an explicit way what is the material obscene according to an objective test. The standard of morality and the public decency is thus left with the personal appreciation of the judges. Moreover, Stewart judge of Ohio while speaking about the obscenity stated this famous sentence  : I know it when I see it (Jacobellis v. Ohio (1964) 378US184, 197 (I recognize it when I see it)). In the Right work of the cyberspace, (Pierre TRUDEL, F.ABRAN, K.BENYEKHLEF and S. HEIN, Montreal, THEMIS Editions, 1997, p.2-35, 2-36), the authors state five elements which one should hold account to evaluate the standard. It is of preliminary information relating to the activity in question, of the number of people exposed to this activity, of the injury caused by the activity, the assent of the people who take share with the activity, and finally, the analogies with similar activities which are tolerated. See also, decision R.C. Tremblay, [1993] 2 R.C.S. 932.

* ¹¹⁶ There are nevertheless two exceptions to the possession of pornographic material youthful  : on the one hand, possession of expressive material created by the interested party such as the writings created by the defendant alone and preserved by this last exclusively at its personal use. Stop R.C. Sharpe ([2001] 1 R.C.S. 45) poses these two exceptions.

* ¹¹⁷ Indeed, the sending with a major third of a message Internet, not containing that the address of a comprising site of the messages violent ones or pornographic and the bond making it possible to reach it, are not enough to characterize the offense envisaged by article 227-24 of the Penal code  : Case. crim., Feb. 3, 2003  : N°2004-022448 Juris-dated.

* ¹¹⁸ The author Christiane FÉRAL-SCHUHL mentions in his CyberDroit work  : right the Internet proof (3rd edition, Paris, Dalloz, 2002, p. 109) that for «  many experts, these criteria are too vague to allow implementation an effective  » of article 227-23 of the French Penal code.

* ¹¹⁹ Emmanuelle DUVERGER and Robert MÉNARD, censure of the right-thinking people, Freedom of expression  : French exception, Paris, Albin Michel, 2003, p. 40.

* ¹²⁰ C. Cr., art 163 (2) A.

* ¹²¹ Law n°98-468 of June 17, 1998 relating to the prevention and the repression of the sexual infringements like to the protection of the minors, in line on  : Legifrance < http://www.legifrance.gouv.fr/WAspad/Visu?cid=19885&indice=1&table=CONSOLIDE&ligneDeb=1 > (site visited on March 13, 2004).

* ¹²² C. Cr., above mentioned, note 44.

* ¹²³ R. v. Pecciarich, [1995] 22 O.R. (3D) 748 (Sup. Ct. (Gen. Div. )); Mr. GEIST, COp cit., note 73, p. 161.

* ¹²⁴ The diffuser of the message has an obligation of precaution since accessibility with the known as images being well the fact of their marketing and not of the possible deficiency of the parents or ambient permissiveness. A Court of Appeal, for example, doubled the sorrow inflicted in first authority by condemning the person in charge for pornographic sites to 30.000 euros of fine not to have used an effective system of prohibition of access to the minors  : E.L C. public Ministère, CA Paris, 13th CH., sect. A, 2 avr.2002, Com. Com. électr. 2002. Com. n°111, p.38  ; Mr. G.C. Public Ministère, CA Paris, May 13, 1998, Gas. Stake. 1999.1.46, note Yann BRÉBAN  ; Mr Timothy K C. Yahoo Inc, TGI Paris, February 26, 2002, on line on  : Juriscom.net < http://www.juriscom.net/txt/jurisfr/cti/ > (site visited on March 13, 2004).

* ¹²⁵ See ALIVE Michel, (to dir.), Lamy Right of data processing and the networks  : data processing, multi-media, networks, Internet, Paris, Lamy, 2003, p. 2798.

* ¹²⁶ R. v. Pecciarich, above mentioned, note 123. Business R. v. Lowes ([1997] Mr. J.N°549) follows the decision returned in the Pecciarich stop where a suspended sentence had been forced (150 hours of Community service) to have distributed youthful material of pornography through an electronic babillard.

* ¹²⁷ R. v. Hurtubise, [1997] B.C.J n°40 (A.C.)  ; R. v. Clark, Court prov. C. - B  ; Mr. GEIST, COp cit., note 73, p. 157.

* ¹²⁸ COMMUNICATION OF THE EUROPEAN COMMISSION, Delivers Green on the protection of the minors and human dignity in the audio-visual services and of information, COp cit., note 104.

* ¹²⁹ Recommendation concerning the development of the competitiveness of the European industry of the audio-visual services and information by the promotion of national frameworks aiming at ensuring a comparable and effective level of the protection of the minors and human dignity, OJ E.C. n°L270 of Oct. 7, 1998, p. 48  ; on line on  : European union of Radio-television < http://www.ebu.ch/departments/legal/pdf/leg_ref_ec_rec_protection_minors_240998_fr.pdf > (site visited on March 13, 2004).

* ¹³⁰ According to the organization with not-lucrative goal «  Enough is Enough  », more than 200 new commercial pornographic sites are born each days and 69% of the expenditure on line are carried out for this kind of sites, according to the Datamonitor site  ; on line on  : < http://www.enough.org/ >, < http://www.datamonitor.com/ >. These figures must be taken with a certain reserve since according to UNESCO, «  Internet being volatile, it is very difficult to determine the number of sites which lodg the pedophilia and the pornography implying the children. No country still really gave itself the means to collect and treat the statistics. In the same way, it is today almost impossible to determine the number of people who consult these sites daily. Current countings do not distinguish the Peeping Toms, them «  involuntary  » and the researchers, and do not take into account the multiple uses of key words nor the cross references which carry out towards these sites. Not very representative, they is likely to minimize the phenomenon  »  ; on line on  : site of UNESCO < http://www.unesco.org/general/fre/events/pedophilie/quoi.html > (site visited on March 13, 2004).

* ¹³¹ R.C. Butler, [1992] 1 R.C.S. 452.