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

b) The legislative starter

The intervention of the judges in the development of obligations to the load of the PSI led the legislator to act by the means of different means to work out or improve the current laws. It thus attacked the problem while trying to clear up the texts. With this intention, the French government in March 1996, asked an interdepartmental working group, chaired by Mrs FALQUE-PIERROTIN, to clear up the legal framework in which developed the services on line of Internet network. This research led to proposals for concrete measures which privileged the self-regulation and the clarification of the responsibilities on the network in the strict respect for freedoms of the communication^177(*).

June 4, 1996, the FILLON minister^178(*) deposits his famous amendment with the Bill on the regulation of telecommunications adopted on June 18, 1996 by the Parliament. This amendment envisaged three shutters. The first forced the FAI to offer software of filtering ; the second created the Higher Committee of Telematics (CST)^179(*) charged to work out opinions on the conformity of the waiters to the French law and finally, the third had the aim of posing a rule of penal not-responsibility for the FAI since they had respected the provisions of the CST. This innovating text was the object of a censure of the constitutional Council^180(*). The last two articles were declared unconstitutional because of delegation of a capacity of penal sanction to an administrative authority and of their inaccuracy^181(*). Mr FILLON then gave up the project. A few years later, another proposal was formulated, this time by Mr MADELIN but it will remain dead letter^182(*).

The most important amendment brought to the Law relating to the freedom of communication^183(*) was that of deputy BLOCHE adopted by the French National Assembly on May 27, 1999. It aimed at anticipating the transposition of the provisions of the proposal for a Directive relating to the responsibility for the technical intermediaries of the network^184(*). This amendment provided that the responsibility for the suppliers could be committed according to certain noncumulative conditions. They were thus responsible if on the one hand, they had contributed to the creation or the reproduction of the contents and on the other hand, if they did not have, on request for a legal authority, promptly acted to prevent the access to the litigious contents^185(*). It was a question of withdrawing the shelterers from an obligation of too high monitoring of the contents. The supplier was to also transmit the elements of identification to the legal authorities. The Senate adopted a new amendment substituent with that of Mr BLOCHE^186(*) who was very criticized^187(*). Indeed, the supplier became the judge of the illegality of the contents of the sites which it lodged because it had the obligation to prohibit the access of them^188(*). Finally, this amendment led to the adoption of new articles to the Law on the freedom of communication^189(*).

* ¹⁷⁷ Isabelle FALQUE-PIERROTIN, Internet  : legal stakes, 1996, on line on  : French Documentation < http://www.ladocumentationfrancaise.fr/brp/notices/974057500.shtml > (site visited on March 13, 2004). Many reports/ratios also intervened thereafter, always to try to disentangle the situation  : for example, the Report/ratio of Mr. Martin LALANDE of April 30, 1997, the Internet, a true challenge for France (Paris, French Documentation, 1998, 112 pages  ; or on line on  : Ministry for the economy, finances and industry < http://www.telecom.gouv.fr/internet/texteofficiel2.htm >), the Report/ratio of Mr. Francis LORENTZ of January 1998, electronic Trade: a news gives for the consumers, the companies, the citizens and the authorities (on line on  : Ministry for the economy, finances and industry < http://www.telecom.gouv.fr/internet/texteofficiel2.htm >) and finally, the Opinion and Recommendations of the CNC on the offer of access to the Internet of February 18, 1997  ; on line on  : French government < http://www.telecom.gouv.fr/internet/texteofficiel2.htm > (site visited on March 13, 2004).

* ¹⁷⁸ Minister delegated to the posts and telecommunications at that time.

* ¹⁷⁹ During the discussions relating to the Law for confidence in the numerical economy with the Senate, two amendments 136 and 137 were presented. They considered the creation of an ethics committee on Internet in which the whole of community Internet would be represented. League ODEBI (< http://www.odebi.org/ >) had also proposed a similar structure, the Commission of the Numerical Litigations (COVERING JOINT).

* ¹⁸⁰ Cons.const., 23 juill. 1996, OJ 27 juill. 1996, on line on  : official site of the constitutional Council < http://www.conseil-constitutionnel.fr/decision/1996/96378dc.htm > (site visited on March 13, 2004).

* ¹⁸¹ See the text of Yves BISMUTH, «  Censurnet or Internet and censure  », in Xavier LINANT OF BELLEFONDS (to dir.), Internet seized by the right  : work of the A.F.D.I.T., Paris, ED. park, 1997, p.169, on page 181  : the American Law Communications Devency Act of February 8, 1996, knew the same fate since several jurisdictions declared this law unconstitutional  ; See also Christiane FÉRAL-SCHUHL, Cyberdroit  : right the Internet proof, 2nd ED., Paris, Dunod Dalloz, 2000, p. 142.

* ¹⁸² The private bill relating to the freedom of the communication on Internet of March 30, 1999, aims at clarifying the responsibilities for the suppliers of services Internet while inserting a new article in the Law of September 30, 1986 relating to the freedom of communication (above mentioned, note 17).

* ¹⁸³ Id.

* ¹⁸⁴ Cyril ROJINSKY, «  Trade electronic and responsibility for the actors of the Internet  », Gaz.Pal. 2000. doctr., p.18 and suiv.  ; T. VERBIEST and E. WERY, Right of the Internet and the company of information  : European rights, Belgian and French, COp cit., note 11, p.423.

* ¹⁸⁵ See C. FÉRAL-SCHUHL, COp cit., note 118, p. 146  ; Murielle CAHEN, the civil liability for the suppliers of access, on line on  : < http://www.declic.net/francais/savoir/dossier/fourniss.htm > (site visited on March 13, 2004); F. OLIVIER and E. BARBRY, loc. cit., note 161.

* 186 See Jean-Paul HUGOT, N°154 Report/ratio  : Selection of the passages relating to the Internet, Law on the freedom of communication, IRIS, on line on  : < http://www.iris.sgdg.org/actions/loi-comm/iris-rapport-senat.html > (site visited le13 March 2004).

* 187 In particular by Association IRIS, Iris denounces a drift fraught with dangers  : with the Senate, Internet providers would become at the same time police officers, judges and critics, Press release of IRIS, January 23, 2000, on line on  : < http://www.iris.sgdg.org/info-debat/comm-senat0100.html > (site visited on March 13, 2004).

* ¹⁸⁸ Critical of the Bloche deputy  ; to see C. FÉRAL-SCHUHL, COp cit., note 118, p. 147.

* ¹⁸⁹ Law of September 30, 1986 relating to the freedom of communication, above mentioned, note 17.