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

B) The pedophilia and pedopornography

The childish pornography or the pedopornography^132(*) and in addition the pedophilia^133(*) became a true plague on Internet. Moreover, the author Astrid ZWEYNERT indicates that :

« The number of Web sites devoted to the infantile pornography has more than doubled last year, can one read in the annual report of the National Criminal Intelligence Service (NCIS) British. The number of Web sites containing of the pornographic images with minors increased by 64% in 2002 compared to the previous year, explains the report/ratio without specifying the correct figure of it. More half of these sites are lodged in the United States, but the proportion of those which are lodged in Russia doubled ». ^134(*)

Consequently, a planetary traffic was organized and developed. To satisfy the request, of the sales or removals of children are developed. Thanks to this draft of human beings, the pedophilia proliferates at exponential intervals in the developing countries. Many cases are discovered implying people sometimes even above suspicion^135(*). « Net surfers in short pants »^136(*) became the favorite targets of the malevolent Net surfers on Internet network. The public opinion is moved by the businesses mediatized such as the Dutroux business^137(*) or the dismantling of networks paedophiles. This is why on many countries decided to adopt a policy anti-pedophilia. The pedopornography was partly treated in the part on the pornography and the obscenity, but certain points remain still all the same to be cleared up.

First of all and with the difference of the pornography, in the pedophilia, it is the image of the child who is aimed. Indeed, « in the case of the pornography the child «with arrived» of information, whereas as regards pedophilia, (...) he is in the beginning »^138(*). This behavior is thus much more dangerous for the child since it is really found in the middle of the action. The pedophilia can take various forms and can be in « flesh and in bone » or « virtual »^139(*). Consequently, the numerical era orders certain legislative installations. In general, in fact once again the penal provisions of the common right apply to Internet. There still, it is of the French Penal code and the Canadian criminal Code which regulate the network for this kind of misdeeds. According to article 163.1 (1) of the Canadian criminal Code, « the youthful pornography gets along (...) has) of any photographic representation, filmed, video or different, carried out by average mechanics or electronic »^140(*). The term « representation » allows to include various sexual scenes which go from the photography of a sexual organ to a writing recommending the sexual activity with a minor. In other words, this definition is sufficiently broad to include all the forms of even virtual youthful pornography^141(*). The simple possession of material paedophile constitutes an offense^142(*), just like the remote loading or the impression of an image with character paedophile constitutes a criminal act. The same applies to article 227-23 of the French Penal code which sanctions various behaviors related to the pedophilia. This text was enriched by « 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 » which prohibits the diffusion, the import or the export of images paedophiles^143(*). The simple conservation of these images from now on is accused since the Law n° 2002-305 of March 4, 2002 on the parental authority^144(*) which adds a subparagraph 4 to article 227-23 of the French Penal code, according to which « the fact of holding such an image or representation is punished of a sorrow of two years of imprisonment and 30.000 euros fine ». On the other hand,

« [it] simple consultation of documents paedophiles is not repressed by the French legislation. It is thus advisable to conform to the principle of strict interpretation of the criminal law and to consider that the simple visit of a site paedophile does not involve de facto application of the penal incrimination aimed to article 227-23 of the New Penal code, in so far as no later transfer makes pass from the files stored in «mask» in a stable zone of the memory computer for a filing of the data ».^145(*)

Moreover, it should not be forgotten that the United States is the pioneers in the data-processing field. They were also the first to be legislated in the field of the virtual pedophilia by setting up a law strictly prohibiting its diffusion or its promotion^146(*). This legislation creates several infringements such as the pedophilia « in flesh and bone », the virtual pedophilia and diffusion or the promotion of this pedophilia « virtual ». According to the debate of the moment, the two last provisions violate the First Amendment of the American Constitution guaranteeing the freedom of expression^147(*). Indeed, the American Supreme Court returned on April 16, 2002, a stop which declares unconstitutional these two central provisions of the law, with the reasons which they enfreignent in a disproportionate way the first amendment^148(*). It considers as well as the law employs a language « too much broad ». On the other hand, it declares sells by auction the production of images of virtual children engaged in a sexual activity^149(*). This decision thus proves unfortunately « favorable » with the virtual pedophilia because of the broad field of application granted to the freedom of expression. On the other hand, in Europe, this pedophilia is prohibited as shows it the international texts. For example, a Decision of the European Union relating to the fight against the pedopornography on Internet^150(*), a Convention of fight against the cybercriminality^151(*) and Decision-tally of the European Union relating to the fight against the sexual exploitation of the children and the pedopornography^152(*) represses it.

To counter this plague, of the organizations of fight against the pedophilia were installed in their turn on the network. Their mission is to count all information on the individuals likely to devote themselves to these activities^153(*). They thus have a considerable role in the dismantling of networks orchestrated by the services of police force which can thus conclude their investigations^154(*).

This first chapter will have made it possible to note that Internet network contains a diversity of contents, of which some should not have their place. Indeed, the sites of pedophilia or container of the racist remarks proliferate exponentially even in the presence of legislations in the field. The problem is that the minors are the first victims of these illicit contents. To face this plague and with the insufficiency of the laws, the courts followed then by the legislator, tried to slow down the abuses by the installation of new laws. Thus modifications were necessary in order to take into account the particular characteristics of Internet. For the moment, they are still too young so that their impact on the network can be truly observed. Nevertheless, these laws set up a mode of responsibility being based on the PSI. Indeed, the victims being unable to identify the true author of the damage held for persons in charge these people receiving benefits in order to obtain repair. Initially, this responsibility was automatic for finally changing, in the second time, of conditional responsibility.

* ¹³² The pedopornography is the representation (by magnetoscopic photographs, slides, films and bands) of one or several children, possibly in company of adults or animals, in installations or acts in obviously sexual matter  ; on line on  : Québécois office of the French language < http://granddictionnaire.com/btml/fra/r_motclef/index1024_1.asp > (site visited on March 13, 2004).

* ¹³³ Id.  : The pedophilia is defined as paraphilie which appears, on behalf of an adult, by a behavior or desires erotic with regard to the children, whatever their sex.

* ¹³⁴ Astrid ZWEYNERT, the number of sites paedophiles would have doubled in 2002, Friday August 22, 2003, on line on  : Yahoo < http://fr.news.yahoo.com/030822/85/3d0cg.html > (site visited on March 13, 2004).

* ¹³⁵ Agreement in Boston on the compensation for the victims of priests paedophiles, Wednesday September 10, 2003, on line on  : Yahoo < http://fr.news.yahoo.com/030910/202/3e12p.html > (site visited on March 13, 2004)  ; judgment of the principal private secretary of the president of the general Council  : T. corr. Mans, February 16, 1998, J.C.P. 1999. II. 10011, note J. FRAYSSINET.

* ¹³⁶ Expression borrowed from Guillaume DESGENS-PASANAU, the center of the current debates: the protection of the minors on the Internet, July 24, 2001, on line on  : Right and New Technologies < http://www.droit-technologie.org/1_2.asp?actu_id=450 > (site visited on March 13, 2004).

* ¹³⁷ See the file of Association the Shield- Defense of the children, on line on  : < http://www.bouclier.org/dossier/785.html > (site visited on March 13, 2004).

* ¹³⁸ See Thierry PIETTE-COUDOL and Andre BERTRAND, Internet and the law, Paris, Dalloz, 1997, p.126.

* ¹³⁹ Terms drawn from the American law on the repression of the pedophilia (Child pornography Prevention Act off 1996 (CPPA)).

* ¹⁴⁰ C. Cr., art 163.1 (1) has)  ; stop R.C. Sharpe (above mentioned, note 116) made an important interpretation of the concepts of article 163.1 as well as a confirmation of its constitutionality.

* ¹⁴¹ See C. OUELLET, COp cit., note 20, p.54.

* ¹⁴² Article 163.1 (4) C. Cr. prohibited the possession of youthful material of pornography  ; for example, R.C. Gauthier, [1999] R.J.Q. 2103  ; J.E. 9961521.

* ¹⁴³ See Sylvain H.C. public Ministère, CA Douai, 4th CH., March 21, 2002, Com. Com. électr. June 2003. n°6, p.38  ; Mister the Public prosecutor C. Philippe H, TGI of Mans, February 16, 1998, on line on  : Juriscom.net < http://www.juriscom.net/txt/jurisfr/cti/resum.htm#h > (site visited on March 13, 2004).

* ¹⁴⁴ Law n° 2002-305 of March 4, 2002 on the parental authority, on line on  : Legifrance < http://www.legifrance.gouv.fr/WAspad/Visu?cid=20701&indice=1&table=CONSOLIDE&ligneDeb=1 > (site visited on March 13, 2004).

* ¹⁴⁵ F. - J. PANSIER and E. PEZ, criminality on Internet, Paris, PUF, coll Which I know  ? , 2000, p.90.

* ¹⁴⁶ Terms drawn from the CPPA, above mentioned, note 139.

* ¹⁴⁷ American constitution of September 17, 1787, additional Articles and amendments with the Constitution of the ratified United States of America on December 15, 1791  ; on line on  : < http://www.jura.uni-sb.de/france/Law-France/const_us.htm > (site visited on March 13, 2004).

* ¹⁴⁸ It just like supports that attraction for the adults put in scene so as to renovate them is not illicit, the synthesized images even to character paedophile  ; See article of Pascal KAMINA, «  Pornography «  virtual  » representing minors  », Com. Com. électr. June 2002, n°6, p.5.

* ¹⁴⁹ Ashcroft, Attorney General, and Al v. Free Speech Coalition and Al 18 U.S.C. §2251, (00-795) 535 U.S. 234 (2002) 198 F.3d 1083 or on line on: Findlaw for Legal Professionals < http://laws.findlaw.com/us/000/00-795.html > (site visited on March 13, 2004).

* ¹⁵⁰ OJ E.C. n°L 138 of the 09/06/2000  ; See the article Agathe LEPAGE, «  The fight of the European Union against the pedopornography on Internet. Haro on the paedophiles of Internet  !  », Com. Com. électr. janv. 2001, n°1, p.28.

* ¹⁵¹ Convention of fight against the cybercriminality, above mentioned, note 67  ; See title 3, article 9 relating to the Infringements referring to the childish pornography.

* ¹⁵² Decision-tally 2004?68?JAI of the Council of December 22, 2003 relating to the fight against the sexual exploitation of the children and the pedopornography, OJ E.C. n°L 13 of January 20, 2004, on line on  : < http://europa.eu.int/eur-lex/pri/fr/oj/dat/2004/l_013/l_01320040120fr00440048.pdf > (site visited on March 13, 2004).

* ¹⁵³ See F. - J. PANSIER and E. PEZ, COp cit., note 145, p.88.

* ¹⁵⁴ For example, association the Shield defends the children and fights against the pedophilia and the ill-treatments of children  : to see the site < http://www.bouclier.org/ >.