SUMMARY

One of the true plagues of these last years on Internet network is that of the presence of illicit contents. The latter take various forms being able to cause more or less serious damage for the Net surfers.

Because of the proliferation of these contents, the legislators, Canadian and European, decided to cure the problem by working out new laws. However, the international aspect of the network generates difficulties of application of the laws what inevitably restricts the regulation installation. In such a context, how it is possible to effectively prevent the circulation of the illicit contents in Internet ?

The principal released solution is the setting concerned of the responsibility for the service providers Internet. The latter must censure the contents presenting an illicit character on Internet. The legislators thus chose to carry reached to basic rights such as the freedom of expression to cure the problems. However, this solution is in contradiction with philosophy originating in Internet which preaches an absolute freedom. However, such a limitation with this freedom can prove to be necessary and justified taking into account the width of the illicit contents circulating on the network.

FOREWORD

First of all, I make a point of thanking my director for research, Mrs Charlaine Bouchard, to have guided me in the realization of this work.

I would also wish to thank Mr Pierre Trudel, for his invaluable indications all carried out via this formidable tool of communication which is Internet network.

Lastly, I will thank my family (my parents, my brothers, Berlioz, Esly...), my dear friends, unquestionable professional and professors to have supported me during the development of this memory. Thank you for your support.

I make a point of warning the readers who the legislation used in this work is up to date only as from May 31, 2004. However, an appendix of update is accessible to the end.

The nations, just as the individuals, cannot live

that in two manners, namely :

while flying or while producing.

Saint-Simon

CONTENTS

SUMMARY I

FOREWORD II

CONTENTS IV

INTRODUCTION 1

TITRATE I THE RESPONSIBILITY FOR THE SERVICE PROVIDERS INTERNET : A MAJOR FACTOR OF REGULATION OF THE ILLICIT CONTENTS CIRCULATING ON INTERNET 8

CHAPTER 1 CONCEPT OF «ILLICIT CONTENTS» : A CONCEPT DIFFICULT TO DEFINE 9

Section I : A definition of the concept 9

Paragraph 1 : A concept with variable content 10

Paragraph 2 : Derivatives of the concept 14

Section II : Illicit illustrations of contents 17

Paragraph 1 : Infringements in general matter 17

With) Heinous propaganda 18

B) Infringements against national safety : terrorist acts 28

Paragraph 2 : Specific infringements against the minors 30

With) Pornography and the obscenity 31

B) The pedophilia and pedopornography 36

CHAPTER 2 THE PASSAGE OF A SYSTEMATIC RESPONSIBILITY TO A CONDITIONAL RESPONSIBILITY 41

Section I : Towards a mode of responsibility righter 41

Paragraph 1 : The emergence of a specific legislative framework 42

With) The installation of the French legislation : several fallen through attempts 42

1) A first discussed outline 42

has) Jurisprudential attempts 43

b) The legislative starter 48

2) The intervention of the legislator 50

has) The Law n°2000-719 of 1 August 2000 amending the Law of September 30, 1986 relating to the freedom of communication : a contradiction surprising with the European provisions 50

b) The Directive of June 8, 2000 on the electronic trade : a return to a responsibility for the suppliers 53

c) A bill transposing the Directive on the electronic trade (for the confidence of the numerical economy) : an important polemic 56

B) Appearance of the Canadian regulation 59

1) The federal legislation : a concerted solution 59

2) The Québécois Law concerning the legal framework of information technologies: a legislative insulation 61

Paragraph 2 : Combination of the new right with the common right 63

With) Common right of the civil and penal liability : always applicable 63

1) The civil liability 63

2) The penal responsibility 65

B) The mode of the responsibility for the editors or directors for publication : a responsibility in « cascade » 67

Section II : The conditional responsibility : a mode of consensus 68

Paragraph 1 : A responsibility « of reason » 68

With) The first person in charge : the content provider 69

B) Contents of the principle of responsibility 70

1) Service providers Internet a priori irresponsible 70

2) Various factors of charge of responsibility 72

has) The control of information 72

b) The knowledge of information 73

c) The absence of action 75

Paragraph 2 : Exemptions or limitations of responsibility 76

With) The absence of general obligation of monitoring 76

B) Determination of the responsibilities according to various activities' 77

1) Simple transport 77

2) The supplier of access Internet 78

3) The activity known as of « caching » 79

4) The supplier of lodging 80

5) Actors of navigation 81

CONTAIN THE II STAKES OF THE APPLICATION OF THE CENSURE LIKE MEANS OF REGULATION 83

CHAPTER 1 THE EXERCISE OF « CENSURE OFFICIAL » : AN EXCESSIVE SOLUTION 84

Section I : PSI : « judges » or « police officers » of the contents diffused on Internet 85

Paragraph 1 : An extraordinary role for the PSI 85

With) « judges of the contents » or it « organizes networks » 85

B) The delicate exercise of the censure : a serious act 87

Paragraph 2 : Limits of the new legislative systems 92

With) Important legislative gaps 92

1) The absence of procedure of withdrawal and notification 93

2) Uncertainty for certain actors of Internet network 95

B) A lack of precision and clearness 96

Section II : Attacks necessary and legitimate to the right to the private life 99

Paragraph 1 : Restrictions on the freedom of expression 100

With) The base of freedom of expression 100

B) Difficulties related to the exercise of this freedom on the network 104

1) American and Canadian absolutism : one « informational paradise » 105

2) European relativism : a more mitigated solution 109

Paragraph 2 : The desire of identification on the network 112

With) Anonymity : corollary of the freedom of expression 112

B) Anonymity with the identification : a well fed debate 115

CHAPTER 2 PALLIATIVES WITH THE EXERCISE OF THE CENSURE : ALTERNATIVE AND COMPLEMENTARY SOLUTIONS 121

Section I : Quasi-legal controls 121

Paragraph 1 : Controls of the diffusion : a source of right 122

With) Lex electronica : uses and the «Netiquette» 122

B) « codes of good control » 124

Paragraph 2 : Controls with the reception : a voluntary censure 126

With) Systems of markings : labels or labelling 126

B) Controls of the person receiving benefits 127

C) Software of filtering 128

D) Parental control 130

E) «Hotlines» : mechanisms of telephone description 131

F) The mechanism of accreditation 132

Section II : The development of a world regulation of Internet network 134

Paragraph 1 : International co-operation : a solution to be developed 134

With) Interventions of international organizations 135

1) The international level 135

2) Within the Community framework 137

B) Convention on the cybercriminality 138

1) International dimension : a disadvantage to fight against the cybercriminality 138

2) Contents of Convention 139

Paragraph 2 : The ambitious step of associations and the private sector : an important role on the network 142

With) The dominating intervention of associations 142

B) The role of the sector deprived to promote self-regulation 144

CONCLUSION 145

BIBLIOGRAPHY 148

COUNT OF THE LEGISLATION 148

COUNT OF JURISPRUDENCE 155

COUNT OF THE DOCTRINES 161

APPENDIX 179

INTRODUCTION

Who, nowadays, did not use or not intended to speak about « highways of information » ? The Net surfers are streets on this new mean of communication. This enthusiasm of the innovation and the facility thus allowed their expansion. « There is today a half billion Net surfers in the world, and one counts almost four million new Net surfers every month^1(*) ».

The highways of information produced an inevitable change of the behaviors, like, were of the years before, television, the radio or the minitel in France. They became the new daily means of communication for the citizens who see there a tool fast and effective to communicate and to get information^2(*). Consequently, these highways become a place of exchange, meeting and freedom of a great part of the population.

Among these networks which take part in these highways of information, more known and used is without question « Internet ». It is about one « mother of all networks » named sometimes « cyberspace ». This cyberspace^3(*), makes it possible for example to people of in the world to everywhere communicate between them. Internet indisputably marked the contemporary art of the communication. This tool changed, changes and will change still indeed our lives^4(*), that some want it or not.

Internet, whose philosophy is quite specific, knew a rather chaotic existence. For this reason it is interesting to briefly expose the broad outline of its history in order to better encircle it. Initially, Internet was used with fine soldiers by ARPA (U.S. Defense Departement' S Advanced Research Projet Agency) in the years 1960, for finally being taken again and was developed by the researchers and university American. The first computer network in the world was baptized ARPANET. It connected certain American universities so that they can communicate between them. Then, this perfectly functioning system was developed to make it available to all. Thus Internet appeared and the questions about its regulation with him. As of its origin, the idea of freedom in the exchanges is installed. The constraints of the market and the pressures of the large commercial companies are then placed out of the sometimes utopian design of the researchers. They want to impose their ideals based on the division of information, a universal access to the computers like on the freedom and the exemption from payment attached to this information^5(*). The cyberspace becomes to some extent a space of absolute freedom where still nowadays, certain Net surfers assert it. Doesn't this philosophy, still quite present on Internet and defended by many users, block the installation of a minimum of barriers and limits with this unlimited freedom, often source of infringements?

The cyberspace, vector without border and where the national laws seem not to exist, thus became a place favourable with the deviances and the illegalities, because of this famous libertarian philosophy. The Net surfers see themselves confronted, in spite of them, with images pedopornographic, racist, force, and even with findable pornographic spams in the letter-boxes or by the means of publicities. Generally, they are imposed to the young people when they « surfent » on the network^6(*). Indeed, today, we can note that racist propaganda or the pornography is much easier to find on Internet than at the beginning of the Nineties. Any Net surfer can, after only a few minutes, to visualize one of these sites, y surfer and to read there all information which is published there. Of at his place, it can print the whole, order all kinds of objects, buy them and even to engrave them if it wishes it. What was formerly proscribed, hidden, ashamed and continued is nowadays in all legibility and visibility on the network. How we under these conditions can, to regulate this new technology efficiently and thus to protect the vulnerable people from these illicit contents ?

It thus seems clear that the first victims of these contents are generally, unfortunately, the minors. Moreover, « the parents declare themselves sensitive to the risks of exposure to shocking contents incurred by their children on the Internet. According to a SOFRES-BayardWeb investigation of March 2002, 78% of the parents were declared thus worried by «the risk for the children of going on sites or making inappropriate meetings»^7(*) ». This concern, with regard to certain contents and activities, seems completely justified and represents really a paramount concern. Internet is on the way to become the media of reference of the young people^8(*) and the number of users ceases increasing at the same speed only the illicit contents. How can we thus prevent the proliferation of these contents or at least, how to prevent that the children do not see them or do not consult them ?

The major problem is that Internet network shows particular characteristics which do not facilitate its regulation and its control. Indeed, thanks to this tool, the Net surfer, adult or minor, will be able surfer in the whole world without nobody controls neither does not supervise the services which he uses, nor contents of its exchanges. It is a completely open network as for what it transports. The distances and the borders are abolished. Thus for a user being on a campus, to communicate with a machine being in Australia or to buy books in the bookseller of at side, will be carried out quickly by simple « click » and without any disadvantage. Internet does not have any definite place making it possible to locate it in an unquestionable way nor of center of control. It thus does not have any body of control which can regulate it nor of administrative structure the representative with regard to the users and of the thirds. It is based on the principle of a network « without head ». Everyone can thus reach it and take part in it. Consequently, Internet is a fabulous means for the profusion of the illicit contents. Moreover, for some, it can be characterized in the following way : « more central control, more chiefs, more laws : no nation will be able to adapt it, no administration to ensure the police force of it^9(*) ». If we start from this quotation, how to set up a real regulation on Internet ?

However, there are particular legislations definite by each country but applicable only within the limits of their own territory^10(*). Internet network is thus not one « space without right ». The right applies to Internet. There are thus laws and « in theory, which is interdict in the real world is as much in the virtual world^11(*) ». However, Internet gets a certain feeling of freedom by which the Net surfer omits to respect the laws under cover, in particular, of anonymity. But let us be us really anonymous on the network ? Is necessary it to identify all the Net surfers to limit, see removing the illicit contents circulating on Internet ? For the moment, the legislator, that it is for example Canadian or French, intervened to regulate this tool of communication which poses, as we can notice it, of serious problems.

The countries thus legislated in order to install barriers and limits with the too great latitude taken by certain Net surfers. Two ways were selected. Initially, a mode of responsibility for the service providers Internet (PSI) was released to cure this phenomenon of the illicit contents. This solution seems justified since these people appear at first sight, best placed to control these contents. However, must they control all the contents ? How must-they to proceed ? They will become judges of the contents or the new police force of the network ? In the second place, the censure was retained by the States to differing degrees. This solution was judged like inevitable in the democratic countries because of the excessive presence of illicit contents. This exercise of the censure is carried out according to several means which can lead to important infringements of the basic rights such as the freedom of expression and the rights of the person. It can appear rather astonishing that the censure is the solution chosen by Canada and Europe, of democratic countries being said. Thus a legitimate question can arise which is of knowing why such countries adopt this kind of system of regulation and if it is really the only possible solution.

It seems clear that the characteristics specific to Internet, like those not to have any border and to be instantaneous, prevent the application of an effective control of the illicit contents. Their presence on the network increases significantly without any fear of the authorities. The latter nevertheless tried to slow down the width of this phenomenon but it seems difficult to counter them. This is why the fundamental question, in the center of this study, is as follows. How can we effectively regulate the illicit contents conveyed on Internet network without restricting the rights of the individuals and thus, to protect the vulnerable users ?

To answer this topical question, it is essential to specify that the constant evolution of the cyberspace does not make it possible to make a complete and static study of this field. The sources innumerable and are diversified. Consequently, it is important to keep a critical spirit on these last since all are not veracious or useful. This is why we will treat only certain contents. The youthful pornography and the pedophilia, which are regarded as infringements carrying exclusively reached with the minors, will be analyzed in our study. Indeed, as we underlined, their first victims have access to the network with complete freedom, without any true parental control. They can thus arrive to sites prejudicial very easily and generally, in an involuntary way^12(*). The same applies, for the heinous remarks which abound on the network significantly. We will thus analyze these infringements which pose, nowadays, of serious problems and incited the countries to legislate and sometimes even, to collaborate between them.

The pursued principal goal of this study, is to clarify the means of regulation chosen by the various countries studied to reduce to the maximum the presence of illicit contents diffused on Internet. With this intention, we will resort to a exegetic analysis but also, a critical and comparative study between Canada, and in particular Quebec and France, influenced incontestably by Europe. Other legal systems such as that of the United States, will be also present in this memory, but only by simple incursions.

Our comparative study between Canada and Europe is likely to make our work more interesting. Indeed, these two systems of right do not have the same legal culture. Canada is a federal country bijuridic with the difference of France which has a system of civil law. Quebec holds however a characteristic, it is an analog and digital system. It will be thus enriching to put forward the various orientations chosen according to the legal design of these countries. Some incursions into the legislations of certain Canadian provinces will be also carried out. Our study shows a certain specificity in the choice of the legal systems since many are those which are leaning on the analysis of the American regulation without worrying about the others on the matter. We will possibly bring, by this memory, a new vision on certain points.

To study the legal systems of the various studied countries, we will proceed in an inventory of fixtures of the decisions of the courts which tried to release from the principles of responsibility with regard to the PSI. They will be analyzed chronological manners for better including/understanding their evolution. Many articles of doctrines will be also studied for this work because of the topicality of our subject as well at the international level as national. Our study will suffer however from important imperfections in particular in what it will treat only of the criminal responsibility even if the contractual practice is a means also very much used to control the network^13(*). Then, we will proceed to the study of the new legislations put into force to finish by the study of the various instruments of autoreglementation. All these applicable national regulations on Internet can sometimes seem inappropriate to see inapplicable on such a support. This is why a study criticizes will be also carried out. It will be a question of analyzing the effectiveness of the regulations and of putting forward the gaps and the limits of these last. Lastly, the studied subject overflows the simple usual legal framework. The political, economic and sociological stakes will be sometimes raised in our analysis. The appearance of Internet generated new behaviors and new orientations in many fields. It is thus essential to take into account this reality to determine our problems correctly.

Our study will be divided into two parts in which we will expose the principal solutions chosen by the countries to regulate these illicit contents circulating on Internet network. The first part will relate to the mode of the responsibility for the PSI, considered as an important means of reduction in the illicit contents on the network (Title I). The second will treat censure like means of regulation of Internet (Title II).

TITRATE I

THE RESPONSIBILITY FOR THE SERVICE PROVIDERS INTERNET : A MAJOR FACTOR OF REGULATION OF THE ILLICIT CONTENTS CIRCULATING ON INTERNET

The Internet network, undeniable factor of progress, was transformed into a daily instrument of communication in a certain number of hearths. Indeed, even if it develops in an uneven way between the countries, it became an important means of exchange of information and documents. The latter unceasingly increase on the network at the point to attack the Net surfer of more or less veracious and useful contents. This superabundance unfortunately brings many abuses which can generate certain damage. The victims being unable itself to obtain repair, initially decided to continue the PSI for the presence of these illicit contents circulating on Internet network. This concept of « illicit contents » thus has a considerable role in the setting concerned of the responsibility for these people receiving benefits. It thus necessary initially, to release a definition of the concept (Chapter I), for then being interested in the second place, on the diet of responsibility for the PSI (Chapter II).

CHAPTER 1

CONCEPT OF «ILLICIT CONTENTS» : A CONCEPT DIFFICULT TO DEFINE

The «illicit contents» on Internet circulate in an abundant and fast way. The Net surfer is thus constrained with being vigilant and criticizing information appearing there. These contents come from the whole world and can cover various aspects. For example, the first businesses on the matter showed that the attacks with the private life were the first illicit contents to be treated there. This term « illicit contents » consequently can, to cover a great number of intrigues, being able to lead to the constitution of a generic category of illicit behaviors likely to be discovered on Internet network. It will be appropriate initially, to try to release a definition of the concept of contents illicit (I) for then, to illustrate this concept for concrete examples in order to better encircle it (II).

Section I : A definition of the concept

Concept of « illicit contents » is used by the lawyers, the international texts and even national without no definition being given by it. That can appear surprising to also frequently use a term, without defining it. For the moment, the only certainty is that this concept has variable contents, which can raise certain difficulties as for its definition (§1). Moreover, this variability makes its field of application broad. A multitude of terms then appeared in order to contribute to the comprehension of this concept (§2).

Paragraph 1 : A concept with variable content

The concept of « illicit contents » is difficult to define because of the transnational character^14(*) of Internet network. Indeed, several legislations are implied. In spite of this problem, it is crucial to define this term in order to better include/understand how each country approaches it. However, before beginning any analysis, it should be specified that this concept is very vague and vague. Its field of application is consequently very fuzzy^15(*). This confusion can be explained several manners.

First of all, this term varies considerably from one country to another, which can explain this absence of definition in the international texts, European and national. In order to fill this gap, it seems necessary to define each term separately. We will treat on the one hand, of the word « contents » and in addition, of the word « illicit », in order to better seize the direction of them. Thus the word « contents » would be attached according to countries', with one or a combination of elements^16(*) such as the radiotelevision for Australia, the edition for New Zealand and the documents audio-visual for the United Kingdom. There is thus a true problem according to the category of media to which Internet is attached. This debate was well fed in France. Indeed, the question arose of knowing if Internet were to be qualified of audio-visual communication, press, telecommunication or contrary to private correspondence. The courts and the doctrines tried to clear up the things without reaching really that point. Thus there is a true controversy still today on this qualification even if Project LEN seems to want to put a term at it^17(*).

Then, the concept of « illicit contents » varies according to the legislative approach and policy which the countries adopt. In accordance with the orientation chosen, the contents to be repressed will be different. Indeed, Internet is considered by certain people as a space of not-right where all can be said and to be done. The authorities come to impose in the regulation of the network of the control and safety requirements which block this freedom, declared for some like absolute. Then be established a conflict on the base of the regulation of Internet which the State must adopt. The field of application will be different and more or less restrictive according to whether this regulation is rather based on the safety or the freedom of expression. Indeed, by choosing a legislation based mainly on safety thus, in the detriment of the freedom of expression, the countries define the illicit contents in manner stricto-sensu. The infringements are thus determined in a strict and literal way by leaving little place to interpretation. On the other hand, if they adopt a more libertarian vision, the laws repressing these contents will be more flexible. The orientations legislative and political, different from one country to another, have consequently a considerable impact on the concept, which does not facilitate the establishment of a minimum of common contents. Indeed, contents can be illicit in a country without inevitably being it in another. However, to give a significance common, general, even international to this concept, could be beneficial to allow a true international co-operation between the countries. This in order to efficiently fight the presence of these illicit contents on Internet network. However, one should not lose sight of the fact that while giving a direction common to this concept, perverse effects can emerge as for the good course of this co-operation. According to whether the definition appears broad or restrictive, the co-operation will be more or less effective. The States must thus get along on a definition at the international level broadest possible, in order to release from the criteria to determine the contents which should make it possible to apprehend in a neutral way of the contents considered to be illicit^18(*).

This possibility seems rather difficult to set up because of the evolutionary character of the term « illicit »^19(*). Indeed, this last returns to complex concepts such as morals, the moralities and the law and order. If we are interested in the law and order, we can already notice that we are confronted with an extremely variable concept^20(*) which evolves/moves considerably from one country to another. The same applies to the morals^21(*) and the moralities^22(*), which are concepts taking of account the sociocultural changes, economic, moral and philosophical of a given civil company. Thus the ideologies, the policies and the religions take into consideration^23(*). These last vary in time and space. These concepts which are directly connected to the statutory values, thus pose a serious problem with the definition of « illicit contents ». Indeed, how can one reconcile all the designs of the countries ? How to determine what is or not moral ? That proves to be impossible bus what constitutes a crime in a country is not it necessarily in another. Consequently, the States should initially get along on the definition of morals and then, of what must be or not reprehensible. It is necessary to find a definition heterogeneous of the words « offense » and « morals » because of the transnationality of Internet network^24(*). To arrive there, the States will have to put forward a certain number of common elements between them, so that there is a reciprocity as the international law preaches it^25(*).

Consequently, the States must make bilateral and multilateral provisions, on an international scale, to treat illicit communications on the world networks. These international agreements must define the concepts so that the field of application is broadest possible in order to cover the greatest number of intrigues suitable for be met in the world. The countries considered in our study have ideologies rather similar or at least rather close. Indeed, Canada and France, even Europe as a whole, have a design of morality and rather similar illiceity, even if the Anglo-Saxon countries have a tendency to be much more liberal on certain points^26(*). These small differences, in addition, will make it possible some Net surfers to carry on their illicit activities in all impunity in certain countries become of « informational paradises »^27(*).

The European Community already started to set up a co-operation at the level of justice^28(*) and police mutual aid^29(*). This regrouping could be done thanks to the agreement of the Member States on the loss of part of their sovereignty to the profit of the European Community. Nevertheless, there are disparities of designs to the center even of Europe, which proves the difficulty in setting up a common legislation on the network. The pornography for example, is prohibited in Ireland and completely free in Sweden. How one in this context can, to adopt single standards and commun runs with all, in matters as sensitive as the public morality, human dignity or the protection of the minors ? However, the legislations, as a whole, seem to want to cure the phenomena of the illicit contents effectively circulating on Internet network.

This absence of definition in the legal texts leads us to seek the direction first concept of « illicit contents ». It is about the contents of information, a document, a data or an electronic site being able to be an exploitable resource^30(*), which is not licit and which is defended by morals or the law^31(*). This approach has a rather broad field of application making it possible to include a number impressing of infringements. Of course, this definition is only one example simplified of the scale of work to make to find a significance uniform with this concept, in order to be able to repress the largest range of illicit contents diffused on Internet.

The concept of « illicit contents » is thus attached to many random concepts such as the moralities, morals or the law and order. This is why, the texts prefer to use more precise terms in order to indicate reprehensible actions in a given country. Their use can return the development of a uniform definition of the complex concept. It is important to clear up the situation and to expose the other concepts.

Paragraph 2 : Derivatives of the concept

The concept of « illicit contents », as we could see it, was not defined or at least, it was to it but only way diverted. The other terms derived from the concept have a definition given by the texts, which enables us to say that their field of application is much more restrictive. First of all, it is necessary to specify which are these terms. They are many and, for some, very similar at first sight. The texts employ the terms « illegal », « prejudicial », « vermin », « offending », « detrimental » and « undesirable ». Nuances must be made between these concepts bus according to whether we use one or the other, the solution will be different to stop the generated problem. Indeed, the measurements required in each case are not the same ones according to the definite contents.

First of all, it is necessary to make the distinction between « illicit contents » and « illegal contents ». Indeed, concept of « illegal contents » is defined by the texts. This term is very similar even synonymous with the first. In its original direction, which is illegal is all that is not legal, which is against the law and contravenes the latter openly^32(*). This term is attached only to the law contrary at the end illicit which is attached to vaguer concepts. Moreover, there can be illicit contents which are not therefore illegal. This concept consequently appears more restrictive than the illicit term. It thus includes/understands all the contrary intrigues with the law. Morals is by no means taken into account in this case, unlike the illiceity which makes it possible to include a great number of behaviors. Indeed, a Net surfer can not violate any law but on the other hand, it can carry reached to a particular category people determined such as for example, the minors who are the first victims on the network.

The Government of Canada opposes the concepts of « illegal contents » with « potentially offensive contents »^33(*). It states that the contents diffused in Internet can violate the Canadian laws. For example, the infantile pornography and the heinous propaganda which are illegal in the everyday life it are also on Internet. The laws must thus be respected on the network. These illegal contents must be distinguished from that which is offensive for certain people, but who remains legal. According to the Government of Canada, « by « potentially offensive contents », one hears, inter alia very contained sexually clarifies or of an extreme violence, or being able to be regarded as offensive for reasons of a nature social, religious, cultural or moral^34(*) ». It would seem that this type of contents concerns more particularly the protection of the minors, who are the people most likely to be offended by the presence on Internet of some of these potentially harmful messages for their physical development, mental and moral.

On the other hand, the European Commission, for its part, established a distinction between « illegal contents » and it « harmful contents », in its Action plan for the promotion of a surer use of the Internet of November 26, 1997^35(*). It raised that :

« The illegal contents must be treated with the source, by the organizations in charge of the application of the laws, on the basis of rule of the national law and the agreements of legal mutual aid. (...)

Being the problem of the harmful contents, the measures to be taken in priority should consist in giving means of action to the users (...) to allow in particular, the protection of the minors ».^36(*)

Terms « vermin » and « potentially offensive » seem synonymous because they are attached to the idea of the protection of a category of determined people regarded as incompetent^37(*) and fragile, such as for example that of the minors. The same applies to the terms « prejudicial », « detrimental » and « undesirable ». Indeed, as for the first, the latter are not punishable in oneself, but they can attack the moral integrity of certain more fragile people when those consult this kind of contents^38(*), such as for example, the pornographic sites reserved to the adults who can be seen and consulted by minors. These contents thus come to harm to the minors and thus their good development. The latter are the first touched by the presence of these contents on Internet network^39(*). Moreover, the public opinion thinks that it is intolerable that children can consult such documents reserved to the adults^40(*).

Terms like « illicit contents », « illegal », « offensive » etc, are not great limpidity nor very explicit. It would thus prove more convincing to expose using concrete examples the contents posing of the difficulties. Under the concept of « illicit contents » are generally referred certain activities such as propaganda heinous and racist, the pornography, the pedophilia, the attacks with the private life but also all that touches with the national safety of the territory, anti-competing practices and attacks with the intellectual property. We will not treat all these activities, but only some of them to illustrate our study.

Section II : Illicit illustrations of contents

There is a diversity of illicit contents which generates reactions more or less sharp at the Net surfers. The latter would wish that certain contents disappear definitively from the network not to be seen and consulted by the minors. Such as for example, the messages considered as really dangerous because they come to attack the minors (§1) ; on the other hand, others are much more general, but quite as dangerous (§2).

Paragraph 1 : Infringements in general matter

Since the attack against America on September 11, 2001^41(*), the terrorist groups multiply as well as the ideological, nationalist groups and of extreme monk^42(*). The majority of the current crises are born from facts of violence, or not armed wars, and facts of communication. They imply the media in a very visible way. According to the author Limore YAGIL, « Internet is well one of the means which they use. Internet is becoming an international tool of very invaluable communication for the terrorists, all confused tendencies »^43(*). The sites of heinous propaganda flower quickly on the network (A) what makes it possible to feed the terrorist organizations (B).

A) Heinous propaganda

Internet offers to the Net surfers extremists a superb world platform where they can, without too much constraint, to expose their theses revisionists, negationnists and racists. Each one has the advisability of being expressed and consequently, to be exposed to a propaganda or a heinous attack. Nowadays, heinous propaganda^44(*) is much easier to find on Internet than at the beginning of the Nineties. Indeed, according to researchers' of the Simon-Wisenthal center, in 1995, there was one site of incentive to racial hatred. In 1999, the Center had listed some more than 2100 and, in 2002, more than 4000^45(*). This rapid proliferation of heinous propaganda is one of the most worrying phenomena on Internet. These sites are easy accesses and very attractive on the visual level in particular for the youngest Net surfers. Moreover, their messages are translated in several languages what facilitate the widening of the remarks enormously. Internet is thus a formidable tool for these intrigues since the diffusion is broad and with few expenses. The néonazis, the skinheads or Klu Klux Klan thus have an access to an unequalled number people in the world. Moreover, a study carried out in Canada exposes this reality :

« It is estimated that in Canada, approximately 150 people use the Internet to convey heinous remarks ; however, it « carried of their voice is disproportionate compared to their number ». The nature of this quite particular support allows the diffusion of propaganda near an international public more diversified. The Web transforms the traditionally limited diffusion of the heinous literature (folders, for example) into a platform which makes it possible these people to acquire a level of credibility and an influence impossible to obtain except network ».^46(*)

The libertarian ideology of Internet, where some want to create a zone of not-right generalized, is thus an exceptional source for these racist groups to establish their ideas, unconstrained in a climate of active tolerance^47(*). Internet is not only any more the instrument of propaganda, but also a useful means for enrôler and to train new members. The extremists try to attract youth on their sites increasingly coloured by small plays in ludic and innocent appearances^48(*).

This study on heinous propaganda lets show through an important controversy. Indeed, it is necessary to find a conciliation between on the one hand, the libertarian liberal spirit conveyed on the network and on the other hand, the need for protecting the Net surfers against discrimination. Indeed, these difficulties can have effects on the execution of the judgments because of different ideologies in certain countries as for the United States where there is a true supremacy of the right to the freedom of expression^49(*). This research of balance and the problems generated by this one developed further in our study.

These groups, eager to transmit their racist and xenophobe opinions to million others, thus borrow a fast access road thanks to the facility with which contents can be diffused by Internet. It is besides this characteristic specific to Internet which raises difficulties with the governments to fight or prohibit the litigious sites. Canada and France recognize that the current legislation applies to the communications by Internet^50(*). Nevertheless, to cure the problem, these countries will adopt either of new laws or to amend laws established to this end^51(*).

Until now, the States anxious to intervene against the presence of illegal contents consulted since their territory adopted two approaches. Either they try to be protected by blocking the access to the contents on their own territory, or to extend their penal scope to the territory where the contents are diffused^52(*). France adopted the second solution in a very discussed business, the Yahoo business^53(*), in which the French judge required American company that it prevents the selling access of the French users to American sites of the Nazis objects, in particular by blocking this access to numbers Internet Protocol, commonly called IP addresses, located in France. The French regulation to fight against the various forms of racism is founded on articles 23, 24 and 24 (a) of the Law on the freedom of the press of July 29, 1881^54(*) and on the Law tending to repress any racist act, anti-semite or also said xenophobe Loi GAYSSOT^55(*). This law touches not only the negationnist question but also discrimination in a broader direction. It shows the will of the French legislator to eliminate any discrimination based on the membership or the not-membership of an ethnos group, a nation, a race or a religion and to fight against the vulgarizing of the crimes Nazis. These laws are also applicable on the network because it should not be forgotten that the current right applies to Internet. Recently, France obtained a new criminal law relating to the infringements in racist matter^56(*). It introduces, for a list of infringements given, an aggravating circumstance characterized by the commission of the criminal acts « at a rate of the membership or not-membership, true or supposed, victims with an ethnos group, a nation, a race or a given religion »^57(*).

Europe also has a plethora of texts and actions to fight against heinous propaganda. Initially, we can quote the Charter of the basic rights of the European Union^58(*), which was proclaimed jointly by the institutions of the Union on December 7, 2000 as well as the Directive creating general framework in favor of the equal treatment de employment work^59(*). Europe set up of many action plans to fight against racism^60(*). Initially, in 1997, the European Union creates the European Observatory of the racist and xenophobe phenomena (EUMC)^61(*) with an aim of providing to all Europe objective, reliable and comparable information on the phenomena of racism, xenophobia and the anti-semitism. This Observatory also signed a Joint Declaration of intention with the European Commission and contributes to the implementation of the measurements aimed to article 13 of the treaty establishing the European Community^62(*). This provision grants this one of new competences to fight any discrimination based on the sex, the race or the ethnic origin, the religion or the convictions, a handicap, the age or the sexual orientation^63(*). Then, there is a Community Action plan of fight against discrimination (20012006-)^64(*), adopted on November 27, 2000, which gives a support for the activities intended to promote measurements aiming preventing or at fighting any discrimination. Lastly, Europe set up the European Commission against racism and the intolerance (ECRI) which aims to fight all the forms of racism in large Europe under the angle of the protection of the humans right^65(*). In his Annual report of the EU on the humans right, adopted by the Council on October 21, 2002, the European Union states :

« The fight counters racism and discrimination represents consequently one of the priorities of the EU within the framework of her Foreign policy and common safety. (...)Within the framework of the European Initiative for the democracy and the humans right, the EU finances many projects for which priorities sets of themes were established. The program for 2002-2004 in identified four among which figure the fight against racism, the xenophobia and the discrimination with regard to the minorities and of the populations autochtones. Many projects are financed by this initiative.

In the conclusions and the action plan adopted by the extraordinary European Council which was held on September 21, 2001 to analyze the international situation following the attacks of September 11, the EU launched a call to the international community for the continuation, in all the multilateral enclosures, of the dialog and the negotiation in order to build, in Europe and elsewhere, a world of peace, right and tolerance, and underlined the need for fighting any nationalist, racist or xenophobe drift ». ^66(*)

The appearance of total communication networks as Internet thus offers to certain people modern and powerful means to support racism and xenophobia and, to diffuse easily and widely contents expressing such ideas. Thus the Member States decided to draw up a Convention on the cybercriminality^67(*) supplemented by an additional Protocol relating to the incrimination of acts of racist nature and xenophobe made by the means of information processing systems^68(*). The two major objectives of this last are to harmonize the criminal law and to improve the international co-operation in order to better fight against racism and xenophobia on Internet. Moreover, France takes part in the International Convention on the elimination of all the forms of racial discrimination^69(*), signed on March 7, 1966, just like Canada^70(*). At the international level, there are many legal instruments fighting against discrimination such as the Declaration of the United Nations on the elimination of all the forms of racial discrimination or the Declaration on the elimination of all the forms of intolerance and discrimination based on the religion or the conviction^71(*) which are also applicable on Internet network. Moreover, associations, leagues or organizations against racism were born such as for example, the International League against Racism and Anti-semitism (LICRA)^72(*).

Canada has like France, a whole plethora of measurements to fight hatred and the prejudices. The supreme Court in the Keegstra stop^73(*) stated that a person does not have the right to pronounce some « statements », since no one cannot encourage the others with hatred because of the race, the color, the religion or the ethnic origin. Moreover, the Court, at the time of the business Irwin Toy^74(*), indicated that « the guarantee of the freedom of expression protects very contained from an expression », except if the expression takes a violent form. The principal legal instruments dealing with heinous propaganda are the criminal Code^75(*), the Law on broadcasting^76(*), the Canadian Law on the rights of the person^77(*), the Canadian Charter of the rights and freedoms^78(*) and the provincial codes on the rights of the person with to Quebec, the Québécois Charter of the rights and freedoms of the person^79(*).

The Canadian criminal Code in articles 318 to 320^80(*) draft of heinous propaganda. It provides in its article 319 that :

« (1) Whoever, by the communication of declarations in a public place, encourages with hatred against an identifiable group, when such an incentive is likely to involve a violation of peace, is guilty :

a) maybe of a criminal act and liable to two years a maximum imprisonment;

b) maybe of a punishable infringement on declaration of culpability by summary procedure.

(2) Whoever, by the communication of declarations differently than in a private conversation, voluntarily foments hatred against an identifiable group is guilty :

a) maybe of a criminal act and liable to two years a maximum imprisonment;

b) maybe of a punishable infringement on declaration of culpability by summary procedure ».

This subparagraph 2 is broader than the precedent since it applies to all the declarations (except for the private conservations^81(*)) and it does not matter that the place is public or not. This infringement can as well aim a person posting of the messages in a Web site as on a babillard^82(*) or by a newsgroup. The supreme Court thinks that this law undermines the freedom of expression protected by article 2 (b) from the Canadian Charter from the rights and freedoms^83(*). However, this attack reasonable and is justified within the meaning of the article first of this same Charter^84(*). Article 320 of the criminal Code allows, as for him, with a court to emit an order of seizure against a publication whose specimens contain heinous propaganda and who are kept for purposes of sale or distribution. Many sites such as Aryan Nations, Klu Klux Klan or Ernst Zundel are likely to comprise texts and documents of this nature. Moreover, some of them were already condemned for the diffusion of this kind of material^85(*).

Another law fights against hatred in Canada ; it is about the Canadian Law on the rights of the person^86(*). She has the aim of supplementing the Canadian legislation while applying to all the industries regulated at the federal level. She lays out that it is illegal to act in a discriminatory way towards a person in particular because of her race, of its ethnic origin, its color or its religion. It is article 13 of this law which specifically aims the discriminatory messages communicated on Internet. However, it does not apply to the litigious contents official statements by broadcasting. This text treats heinous propaganda thus^87(*) and its attack in article 2 of the Charter is justified under the terms of the article first the latter^88(*).

In the province of Quebec, the Québécois Charter of the rights and freedoms of the person^89(*) are the text which fights against hatred and it states, in her article 10, which :

« Any person is entitled to the recognition and the exercise, in full equality, of the rights and freedoms of the person, without distinction, exclusion or preference based on the race, the color, the sex, the pregnancy, the sexual orientation, the marital status, the safe age in the measurement envisaged by the law, the religion, the convictions political, the language, the ethnic or national origin, the social condition, the handicap or the use of a means to mitigate this handicap ».

This text indicates that there can thus be limitations if they are envisaged by the law according to certain conditions. That differs from article 15 of the Canadian Charter which does not envisage anything on this point.

To conclude, the studied countries have a regulation to fight against this phenomenon which is, for the moment, too embryonic to evaluate the real impacts of them. It applies to Internet even if that is not specified expressly in the texts. However, hatred on the network increases considerably and in a worrying way^90(*). It is currently very simple of surfer on the network and to find sites with racist and heinous contents. France, as we could expose it previously, worked out specific laws to cure the problem, unlike Canada which functions with its current laws. France, with the support of Europe, wants to become a country where the heinous sites do not have their place and to fight against this phenomenon of radical way^91(*). For the moment, these laws did not prove reliable and the authors of these illicit contents always find the means of exposing their remarks extremists.

The majority of these forms of racism involves, in certain case, an attack with the national safety of the country, and even international. Since the events which have occurred in the United States, September 11, 2001, the terrorist acts increased significantly. They are increasingly present in the real world but also on the Internet network which is a vehicle remarkable for the latter to reach without difficulties information or to collect funds for their operations.

B) Infringements against national safety : terrorist acts

Terrorism is a complex phenomenon which revêt various forms^92(*). It can go from the individual assassination to collective terror, of ideological writings to data-processing espionage, the virus to data-processing sabotage. It develops in a nowadays fulgurating way and a way increasingly more complicated and required. Indeed, the data-processing hacking had involved mainly only financial damage. Since the events of September 11, 2001, it is to be feared a new form of terrorism aiming at damaging the networks and the infrastructures of carried out communication of coordination with attacks of the physical type^93(*). The war will be carried out from now on by disorganizing the communications by means of virus, of logic bombs destroying the data of the computers adversaries. This new terrorism already started to prove reliable. Indeed, of the American data-processing pirates devastated a whole Internet site opened by the Chinese authorities in order to promote their policy relating to the humans right. They replaced the banner page by a text entitled : « Boycott China »^94(*). Another more famous and destroying example is that of the virus « I Coil You » which, as from May 4, 2000, penetrated of the million computers while being propagated everywhere on planet. This virus, particularly virulent, had been conceived by one « hacker » Filipino, studying in data processing. Sometimes, of the individuals being apart from any terrorist organization, receipts of explosives and machines flamers publish, in free access on the network. Everyone can also consult the Handbook of the terrorist and manufacture an artisanal bomb of strong power^95(*). It is with this kind of misdeeds that it will be necessary from now on to sail daily on the network.

The countries, as a whole, took with serious the this fight against terrorism by consolidating the national legal arsenals. France considers, for example, that the fight against the financing of terrorism revêt a priority character. Thus it obtained on November 15 2001 a Law on the daily safety^96(*) which treats in its chapter V of the provisions reinforcing the fight against terrorism. It is article 22, modified on March 19, 2003, which states the need for thwarting and for fighting more effectively the terrorist threats even on Internet network. This Law came to supplement the Law relating to the fight against terrorism^97(*) dating from September 9, 1986. Canada also has its antiterrorist Law^98(*). They are only particular laws here. In general, it is once again the French Penal code and the Canadian criminal Code which will apply on the matter. The provisions which regulate terrorism are articles 421-1 and following for the right French and articles 83.01 and following for the Canadian right. In both cases, a definition of terrorism is given but certain nuances must be made. Indeed, the term « terrorist act » is employed by the French legislation whereas they are the expressions « terrorist activity » and « group terrorist » which is used in the Canadian legislation. The approach is different but the finality is the same one.

Europe also has legal instruments to fight against terrorism. The Council of Europe worked out on January 27, 1977, European Convention on the repression of terrorism shows Strasbourg. It is supplemented by a Project of bearing Protocol amendment to European Convention for the repression of terrorism^99(*).

However, to suppress terrorism effectively, the international co-operation seems the only true solution^100(*). Many International Conventions on the antiterrorist fight were implemented. One of the last, dating from December 8, 1999, is entitled International Convention for the repression of the financing of terrorism^101(*). Canada and France signed it^102(*) but still did not ratify it. There is also a Convention of the United Nations against organized transnational criminality^103(*) and three protocols against clandestine immigration, the traffic of the people and finally, the traffic of the weapons with fire.

Other international texts were worked out by the States in order to frame certain deviances in the opposition, this time, people considered as vulnerable. Indeed, Internet network became captivating media and sometimes even educational for a good number of children and teenagers who y « surfent ». Nevertheless, it should not be forgotten that the network is also a place of deviance where côtoient themselves for example, of the pornographic sites and pedophilia. The latter can harm to the minors more particularly. This is why we will treat specific infringements against the minors.

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.

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.

CHAPTER 2

THE PASSAGE OF A SYSTEMATIC RESPONSIBILITY TO A CONDITIONAL RESPONSIBILITY

In order to fight against the presence of these illicit contents, the legislator intervened to set up a mode of responsibility and thus to make the network sedentary. The courts were the first to make enter in manner expresses the right on the network. Indeed the judges, in a preoccupation with a repair of the injury caused with the victim, made systematically responsible the PSI of the messages illicit being on their waiters, whereas they were not the authors. This system, very criticized, appeared for the majority of the doctrines as an unjust solution for these people, even illogical. But, the opposite situation, by not holding them responsible, would have been quite as absurd. These people receiving benefits should not thus be left on side. This is why the legislators tried to found a mode of responsibility righter (I). This mode thus tried to reach a balance between on the one hand, the installation of an automatic responsibility and on the other hand, a total absence of responsibility. The selected solution is that to apply to these PSI, a conditional responsibility (II).

Section I : Towards a mode of responsibility righter

The characteristics specific to Internet, whose principal one is to be a space without border, caused serious problems for the victims which wished to continue the authors of the litigious messages circulating on the network. They had no possibility to identify them. These authors, in addition, were very often abroad and in addition, insolvent. The courts, to counter this nuisance, tried to release from the obligations against the PSI for finally, to see appearing more specific legislations (§1). In spite of the particular intervention of the legislator, the common right always remains in application in certain cases (§2).

Paragraph 1 : The emergence of a specific legislative framework

New laws thus came into effect in order to make it surer for the Net surfers. Before the development of such a legislative device, many French attempts took place whose majority were fallen through (A). Canada also knew a long legislative work which proved less tormented than its French counterpart (B).

A) The installation of the French legislation : several fallen through attempts

The installation of the French legislation resulted in the emergence of a first outlines somewhat discussed (1), for finally leading by the drafting of a law coming to transpose a European Directive (2).

1) A first discussed outline

The French legal system takes its source in several decisions treating of Internet network and is also inspired by many doctrinal texts. It will thus be appropriate initially, to discuss more particularly the contribution of jurisprudence (A), then in the second time, to be interested in legislative construction (b).

a) Jurisprudential attempts

Internet, as we already could expose it, is a mean of communication posing of serious problems and more particularly, with regard to its regulation. Because of the specified inherent ones in this new support, the infringements, increasingly many on the network, often remained unpunished or with difficulty appréhendables. The courts thus were seen confronted with difficulties as regards responsibility for the PSI. Thus, in the absence of specific legislation, the judges tried to set up obligations at the load of the PSI. Thus the Court of first authority of Paris^155(*) intervened by applying the common right of the responsibility according to articles' 1382 and 1383 for the French Civil code^156(*). In this business having opposed the Union of the Jewish Students of France (UEJF) to several suppliers of access of Internet (FAI) in connection with messages anti-semites, the judges retained with the load of these people receiving benefits a certain obligation of monitoring. This judgment was the first to treat responsibility for the latter in the absence of any specific regulation. Vis-a-vis these questions of responsibility increasingly present, the PSI decided to intervene while stating that they could be held indeed responsible but with some limit. Indeed, they argued that they theirs were impossible to check all the contents circulating on the network and that in spite of the absence of legal obligation, they were going to be essential a certain order deontologic.

After this first advanced, intervenes another decision very discussed, in particular in the field of the penal responsibility. This decision will be used later on basic for the development of the regulation. It is about the business Estelle Hallyday of June 9, 1998^157(*). This decision opposes a famous French mannequin to a supplier of lodging which let diffuse private photographs the stripped representative. The stereotypes were diffused without no assent being established. The Court thus condemned the suppliers on the base of the obligation to take care of the good morality of lodged, to comply with the deontologic rules, the laws of the thirds, the laws and the payments :

« Waited until on the question of the responsibility for the supplier of lodging, it appears necessary to specify that the supplier of lodging has the obligation to take care of the good morality of those which it lodges, with the respect by those of the deontologic rules governing the Web and with the respect by them of the laws and the payments and the rights of the thirds ».

These reasons are very contestable insofar as it seems illusory to believe that a person receiving benefits can respect these obligations. It is, indeed, impossible for this last to know in detail the lodged sites and to check in a systematic way all disseminated information. This business thus caused a certain polemic. On the one hand, only the author of detrimental contents can, in theory, responsible held being and not the shelterer. Moreover, the freedom of expression, morals and the censure are likely to make emerge from the problems because of creation by the judges of the obligation to check the contents of the sites and thus to cease any illicit diffusion. Consequently, the PSI is found subjugated with a complex role. This judgment was exposed before the Court of Appeal of Paris, February 10, 1999. This one decided that the shelterer « by lodging in an anonymous way on the site (...) obviously exceed the role of a simple transmitter of information » since it draws from the benefit of this lodging.

Another business, of the same importance, came to feed the debate on the responsibility for the PSI. Indeed, the first solution seemed to tend towards a will to protect the shelterers from Web pages whereas this new judgment goes against the movement militant while choosing an exemption of responsibility^158(*). It is about the Lacoste business of December 8, 1999^159(*) whose facts are very similar to the Hallyday decision. This judgment gives a definition of the activity of a person receiving benefits of lodging^160(*) and enumerates the various obligations with its load. Indeed, it « supplier of lodging is held of a general obligation of prudence and diligence. It rests with to him to take the precautions necessary to avoid injuring the rights of the thirds and he must implement for this purpose the reasonable means of information, vigilance and action ^»161(*). These obligations of means carry « on the precautions to be taken and controls to be implemented to prevent or put an end to the storage and the supply of contrary messages to the provisions legal into force or prejudicial with the rights of the thirds concerned »^162(*). They « do not imply the general and systematic examination contents of the lodged sites ». Consequently, the supplier found himself with a role going beyond the simple transmission of information because of his statute of contracting of the editor of the site whose contents could appear prejudicial. He had thus the capacity to check the content of it even if he did not have to carry out « a meticulous and thorough monitoring of the contents of the sites »^163(*). It was to thus only take « reasonable measurements »^164(*) that any careful and diligent person would take. This judgment will be confirmed later by other decisions^165(*) which will retain the responsibility for the supplier on the base of the responsibility for common right founded on articles 1382^166(*) or 1383^167(*) of the French Civil code. It is thus a question of characterizing the fault, the imprudence or the negligence of this intermediary to engage its responsibility. The Lacoste business it was also carried before the Court of Appeal of Versailles which will take again the obligations with the load of the person receiving benefits and will state that the only limits with its diligence are « incompetence or the abuse right of the shelterer to appreciate the illegality, the illiceity or the detrimental character of the litigious contents »^168(*). It also considered that the supplier was to take preventive measures such as the prohibition of anonymity and adhesion with a charter of behavior. This stop thus stresses the difficulty in finding a balance between the interests of the injured thirds and the people receiving benefits of lodging which systematically call upon impossibility of checking the entirety of the contents that they diffuse. Moreover, this decision intervened at the time when a Bill amending was discussed the Law September 30, 1986 relating to the freedom of communication which will lay down new rules.

One of the most important decisions on this question is the Yahoo business^169(*) which once again comes to feed the controversy. It was acted as the species, of the auction sale of Nazis objects considered by various associations (UEJF and LICRA) a propaganda anti-semite. This judgment forced the Yahoo company to take technical measures necessary in order to filter the access of the French Net surfers and to deliver an informational message on the risks incurred in the event of continuations of the consultation of such a site. These measurements had as a base the fact that simple visualization in France of Nazis objects constituted a violation of the French law and a disorder with the internal law and order. The judges by these reasons thus wanted « to nationalize » part of Internet. This business was very criticized and, in particular, it was regarded as a threat with the freedom of expression on Internet. It was an awkward attempt to impose its national law on the whole of the network^170(*). On the other hand, it shows the sign of a ripening of the legal framework of Internet and emergence of a new approach of the courts concerning their competence. It also showed that it was possible technically to supervise the sites and to prohibit those being of an illicit nature on the network^171(*). This ordinance was declared impracticable in the United States by the federal Court of San Jose^172(*), estimating that it was against the principle of freedom of expression as guaranteed by the First Amendment of the American Constitution^173(*). Recently, the saga Yahoo continues since the French judges could once again treat this business but this time with the penal one^174(*).

Finally to finish, a last business^175(*) held the attention. It is about the litigation opposing association antiracist I show with many FAI and the Association of the suppliers of access and services to Internet (AFA), concerning the American gate front14.org which gathers sites néo-Nazis and xenophobes. In this business, the judge recalls that the current substantive law does not impose any obligation on the FAI, except that to provide to their customers tools for filtering. Consequently, they do not have any personal obligation of filtering. It to them is left it to to freely determine measurements appearing to them necessary and possible vis-a-vis to the report of the illicit character of the sites. They can thus refuse to provide an access Internet and if they do not do it, they could see their committed responsibility. Moreover, the current right does not make it possible to require of the person receiving benefits whom it puts a term at a violation or whom it warns a violation. Nevertheless, the judge specifies that one needs a dynamic participation of the whole of the actors of Internet to manage to control the network and this, for two reasons. Initially, it is difficult to hope for an even minimal self-regulation of Internet, means of all the aggressions, where reign still the ideology of a total and absolute freedom without any constraint. In the second place, there is a quite real risk to see developing « paradise of the Internet » where it will be very difficult to reach the cyberdélinquants which will profit from a favorable legal space. This business I show anticipate the future European Directive^176(*) which founds a derogatory mode for the FAI. Moreover, it establishes a new concept, that of the legal not-responsibility accompanied by a moral judgment. The FAI must thus precede the current right in the name of morals, which can raise certain difficulties. The intermediaries they are placed best to determine what is or not moral ? This is not the role of the judge ? Teststemyà it not there a risk of abuse ? These questions will be treated further in our study.

The following developments make it possible to note that these various decisions constituted the starting point of the legislative projects and sometimes even, the occasion to improve the current legislation.

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(*).

2) The intervention of the legislator

The authorities tried to clarify the mode of responsibility for the PSI following the various caused debates on the one hand, by the businesses treated in front of the courts and, on the other hand, by the doctrines. Initially, after amendment BLOCHE, was adopted the Law n°2000-719 of 1 August 2000 amending the Law of September 30, 1986 relating to the freedom of communication^190(*) (1), come to anticipate the transposition of the Directive on the electronic trade^191(*) (2). Thereafter, France transposed this European text completely, which generated important polemizes (3).

a) The Law n°2000-719 of 1 August 2000 amending the Law of September 30, 1986 relating to the freedom of communication : a contradiction surprising with the European provisions

Following the Hallyday business, the French National Assembly adopted the bill amending the Law of September 30, 1986 relating to the freedom of communication, promulgated on August 1, 2000^192(*). It creates a new chapter and inserts articles 43-7 to 43-10. The mode set up is more protective suppliers of lodging compared to former jurisprudence^193(*). Nevertheless, it should be specified that this new legislation is in total contradiction with the Directive on the electronic trade with regard to the responsibility for the FAI and lodging^194(*). The doctrines suggest with the judges, in this case, « to follow the Community provisions since the national provisions are the exact opposite one »^195(*).

Article 43-7 of the Law of August 1, 2000 provides for the FAI, that they will have to provide means of filtering^196(*) to their customers without no reference to their responsibility being made. They seem thus always subjected to the common right. Moreover, this text does not envisage any sanction in the event of nonrespect of this obligation. It thus proves in total contradiction with the Directive on the electronic trade^197(*) which withdraws, by principle, the technical person receiving benefits with any responsibility^198(*). The suppliers of infrastructure and mask are regulated by no provision.

On the other hand, for the technical intermediaries, article 43-8 of the Law of August 1, 2000 lays down an exemption of responsibility. It lays out that :

« The persons or entities which ensure, on a purely free or expensive basis, direct and permanent storage for provision of the public of signals, writings, images, sounds or messages of any nature accessible by these services, are penally or civilly persons in charge because of the contents of these services only :

- if, having been seized by a legal authority, they did not act promptly to prevent the access to these contents ;

- or if, having been seized by a third estimating that the contents that they lodg are illicit or causes an injury to him, they did not proceed to suitable diligences ».

This last provision was censured by a constitutional Council Decision of July 27 2000^199(*) which declared it unconstitutional. It considered that the conditions of sasine by a third were not sufficiently precise and that the article did not determine in a rather clear way « essential characteristics of the faulty behavior likely to engage if necessary, the responsibility for the interested parties »^200(*). Consequently, the responsibility for the supplier of lodging is limited to the only sasine for the judge. These operators must only submit with the injunctions of justice and are held with no other vigilance^201(*). There is thus an absence of responsibility whereas there is one in the Directive on the electronic trade^202(*). The judges interpreted besides these provisions like posing a principle of irresponsibility of the shelterers^203(*). This mode does not allow any more the application of articles 1382 and 1383 of the French Civil code to the litigations born between third and suppliers because of the contents of a lodged site^204(*).

The new text also envisages provisions to allow « identification of any person having contributed to the creation of contents » and the capacity gives to the legal authorities of « to require communication near the people receiving benefits »^205(*) of the data which milked with the identification of the creators of site. Article 43-10 of the Law of August 1, 2000 lays out that the person receiving benefits holds at the disposal of the public certain elements of identification. It is thus about a mode excluding anonymity.

This law wanted to anticipate the Directive on the electronic trade but the result was disappointing^206(*), since it comprises many contradictions with the latter.

b) The Directive of June 8, 2000 on the electronic trade : a return to a responsibility for the suppliers

The Directive on the electronic trade^207(*) intervenes to define a common legal framework and to facilitate the rise of the company of information^208(*). It was to be transposed in national law before January 17, 2002^209(*). France still did not transpose this text, even if it is in the process of do it. The courts will be obliged thus to take account of the existence of the Directive to interpret the French law as requires it Community jurisprudence or to directly apply the Directive to the electronic trade^210(*).

The European text leaves a great part of initiative to the Member States and, in the event of future divergences, those will be corrected at the time of the re-examinations of the Directive envisaged in article 21. The States should not either take measures which would call into question cultural pluralism^211(*). As for the preceding French law, the person receiving benefits is held to provide certain information in order to limit the cases of anonymity^212(*).

The Directive on the electronic trade, in total contradiction with the French law, took as a starting point the the German Law relative to « Téléservices »^213(*) come into effect on August 1, 1997 and mainly of the American legislation, the DIGITAL Millenium Copyright Act (DMCA)^214(*), promulgated on October 21, 1998 by the American Congress. The American legislator planned for the intermediaries of the conditional exemptions of responsibility which would rise from violations of the royalty^215(*). Their responsibility is thus limited to certain conditions which, once filled, exonerate it. The situation is quite different for the Directive on the electronic trade which poses as principle which the person receiving benefits is irresponsible, except under certain conditions. It takes again same logic as the DMCA by making a distinction according to the activity carried on by this PSI. There are thus three types of activities : simple transport^216(*), it « caching »^217(*) and lodging^218(*). For each one of them, it is necessary to meet certain conditions to profit from the exemption envisaged ; failing this, the responsibility will be appreciated according to the national law according to the Directive on the electronic trade. For these activities, it limitativement founds a conditional mode of exemption of responsibility by enumerating the assumptions on which the people receiving benefits could be regarded as faulty. Moreover, it carries out a distinction between on the one hand, the actions of responsibility and, on the other hand, the actions in suspension^219(*). It also exempts the PSI to carry out controls a priori systematic^220(*).

The Directive on the electronic trade wants to encourage the codes of conduct^221(*), the settlement of the disputes^222(*) and the co-operation between the Member States^223(*). It should be noted however, that is with the latter to determine the sanctions which must be « effective, proportioned and dissuasive »^224(*).

With the difference of the DMCA, the Directive does not treat a question relating to the responsibility for the bonds hypertexts, repertories, search engines and other assistances to locate information available on line. However, it is envisaged in article 21 that these questions will be analyzed by the Commission before July 17, 2003, by the formulation of proposals. For the moment, only one report/ratio dating from November 21, 2003 was adopted on the application of the Directive on the electronic trade. This report/ratio is very general and does not relate solely to the aspects of the responsibility. It states that « the directive seems to have succeeded in reducing the recourse in front of the legal courts and thus uncertainties, in particular with regard to the responsibility for the intermediate people receiving benefits of services Internet »^225(*). By this report/ratio, the Commission announces its action plan for the good application of the Directive. Indeed, it wishes to improve information and sensitizing of the companies and the citizens, to identify the fields of future actions such as the plays on line, them « E-pharmacies » and the protection of the minors. This first evaluation remains rather summary and incomplete since the Directive on the electronic trade, for the moment, lack of experience practical. Indeed, it is inconceivable to date to proceed to any revision which would be in any event, premature. The European text has other considerable gaps which will be treated further in our study.

France, after a notable delay in the transposition of the Directive on the electronic trade, filed in a bill which raises some difficulties.

c) A bill transposing the Directive on the electronic trade (for the confidence of the numerical economy) : an important polemic

The transposition of the Directive on the electronic trade proves to be a tiresome and long-term work. Indeed, this project begin with a first Project entitled Loi on the company from the information^226(*), which finally was given up and replaced by Project LEN^227(*) presented by the Government at the Council of Ministers on January 15, 2003. This project came to fill the gaps of the precedent and constitutes the first text of the Plan for a numerical Republic in the Company of information (Plan RE/SO 2007)^228(*) presented by the Jean-Pierre Raffarin Prime Minister on November 12, 2002. It aims at supporting the development of information technologies by simplifying the rules in force on Internet, by restoring the confidence of the users in particular, and by clarifying the responsibilities for the various actors of the company of information. In his speech, the Prime Minister declares that three texts will come to clarify the rules of the game of the company of information by the end of the first half of 2003. This plan RE/SO 2007 right now gave place to the presentation of texts. Indeed, the first text is thus Project LEN^229(*) adopted in the Council of Ministers on January 15 2003 which should make its entry in the French legal system soon. The second text was presented by the minister delegated to Industry, Nicole Fontaine, July 31, 2003 front the Council of Ministers. It is about the Bill on the electronic communications and the services of audio-visual communication^230(*).

Project LEN^231(*) proposes many changes, in particular on the right of the consumers or of publicity by courriel, it also governs the liberalization of the software of cryptography, and amends the Law of 1986 on the freedom of communication^232(*). A question more particularly worries the various actors of the network, it acts of that concerning their responsibility.

Indeed, the polemic on this point is started again. Many associations denounce this text and judge it liberticide at the point to make new proposals^233(*). What can envisage this Project LEN well to cause as much interest ? Article 43-8 states that the people who lodg information on their waiters « even on a purely free basis », can see their committed civil liability « if, as of the moment when they had the effective knowledge of their illicit nature, or facts and circumstances highlighting this illicit character, they did not act with promptitude to withdraw these data or to make the access to those impossible ». This provision results directly from the Directive on the electronic trade^234(*), and the same applies to the penal responsibility. Indeed, the PSI will not see their committed penal responsibility « that if, with full knowledge of the facts, they did not act promptly to put an end to the diffusion of information or an activity of which they could not be unaware of the illicit character »^235(*).

These two provisions thus set up a new device of setting concerned of responsibility which can, indeed, to cause some nuisances for the various actors of Internet network^236(*). Indeed, this Project LEN implies that a simple presumption of illiceity will allow a shelterer on request for a third, to withdraw information or to make its access impossible. In spite of the presence of a guard insane in the event of abuse^237(*), the shelterers fear to have to replace the judges to decide if such or such contents are illicit or not^238(*). This difficulty will be developed further in our study. For the moment, we can name like first brief reply, the remarks of Pascal COHET who declares :

« It is however enough to take the example of the site I-boycotts-Danone. The shelterer had disconnected the site after the reaction from Danone. But when the judge intervened, later, it estimated that the only problem arising from the site was the diversion of logo. In other words : it is enough to let the judge do his work correctly. The intermediary by not having competences. It can make only brutal decisions »^239(*).

Project LEN, of many time amended, placed at beginning Internet under the authority of the Higher Council of Audio-visual (SCA) and stated that it was a subset of the audio-visual communication^240(*). However, the last version of Project LEN, as presented in front of the Senate in second reading, decides that only the radio and television would return in the sphere of competence of the SCA. This reversal falls under the idea of the deputy Jean DIONIS OF the STAY, which considers that « it is impossible to make it possible the SCA to control the contents and the counterfeit on the Internet. The only acceptable regulator must be the judge, seized by the Net surfers »^241(*). It thus confirms the principle according to which the technical intermediaries are not subjected to the general obligation of monitoring of the contents^242(*).

This bill thus knew difficult beginnings which continue still today. The debates do not cease and the professionals of Internet network are afraid to set up in « judge contents ». For this reason they continue to exert lobbying near the legislator in order to obtain a better safety for their activities. As a whole, the text falls under the prospects for the Directive on the electronic trade, even if many associations strongly denounce it. Indeed, concerns of the PSI vis-a-vis this text can seem justified. It is what we will try to expose throughout our study. The French legislation knew important bounces as well as the legislations Canadian and Québécois which also worked out a regulation for Internet.

B) Appearance of the Canadian regulation

Canada, just like France, were confronted with realities of Internet and the legislators had to intervene to try to clarify the difficulties encountered and caused by the massive presence of illicit contents circulating on the network. Thus the federal Government worked out a law inspired of various Anglo-Saxon models already existing (1), whereas the province of Quebec preferred to follow the European movement (2).

1) The federal legislation : a concerted solution

Canada is a federation where competences are shared between on the one hand, the federal State and, on the other hand, its various provinces. The Conference for the harmonization of the laws in Canada adopted in 1999 a uniform Law on the electronic trade (LUCE)^243(*). The latter takes as a starting point the the standard Law of the CNUDCI on the electronic trade^244(*) of 1996^245(*). It takes again these provisions mainly and approaches philosophy minimalist^246(*). This one recommends that one should not take account of technologies and thus to work out neutral legal rules which would be thus applicable some that is to say the support used.

The various Canadian provinces, in a preoccupation of harmonization and a coordination of the approaches, wrote all their legislation while following the provisions relating to the electronic trade of the LUCE. For example, Electronic Act Transactions^247(*) of British Columbia and the Law of 2000 on the electronic trade (LCE 2000)^248(*) of Ontario were strongly inspired some. This will to standardize the laws on the electronic trade thus will allow its national and international development^249(*). However, it should be specified that no provision treats responsibility for the PSI. These laws were installation to make the promotion of this trade. Indeed, the LCE 2000 is initially intended to make so that the electronic contracts, documents and signatures have the same legal effects as those on paper medium ; in second place, to adopt national and international standards for the right of the electronic trade ; in third place, not to oblige anybody to use or to accept electronic communications and lastly, to prescribe the use of no technology particularly^250(*).

In the absence of specific provisions relating to the responsibility for the PSI, we can deduce from it that the common right has vocation to apply in the event of litigation between a PSI and a Net surfer victim of the presence of illicit contents. Moreover, as we already could expose it, of the particular modifications relating to Internet network were carried out in certain legislations in force. For example, the criminal Code inserted articles treating in particular youthful pornography on Internet^251(*).

The laws of the various Canadian provinces, that is Manitoba, British Columbia or Ontario, all are organized on the same model with only some minor divergences. However, Quebec adopted a specific approach dissociating other provinces completely.

2) The Québécois Law concerning the legal framework of information technologies: a legislative insulation

Quebec, contrary to the other provinces, thus followed a model different from that proposed by the LUCE. This difference appears by the adoption of the Law concerning the legal framework of information technologies (LCJTI)^252(*). This law takes account of « principles of the functional equivalence and the technological, media and legal neutrality [which] are in the middle of the legal framework installed »^253(*).

It is inspired at the same time by the law of the State of New York and certain provincial laws^254(*) but especially, it presents many similar points with the Directive on the electronic trade^255(*). Indeed, the LCJTI founds a mode of responsibility for the technical intermediaries on Internet^256(*). It is about a conditional mode of exemption of responsibility in favor of certain intermediaries. Consequently, the latter, with the help of the respect of certain conditions, are exonerated from responsibility for the documents held, indexed and transmitted. The LCJTI thus poses the same principles as the European Directive namely that the technical suppliers are subjected to the principle of irresponsibility under condition. With the difference of the Directive, the people receiving benefits offering of the services of reference are treated and subjected to the same principle relating to their responsibility^257(*).

The LCJTI thus chose to take as a starting point the the Directive on the electronic trade with regard to in particular the responsibility for the PSI. It also provides that the person receiving benefits « is not held to supervise information of it, nor to seek circumstances indicating that the documents allow the realization of activities in illicit matter »^258(*). This provision joined the objectives of article 15 of the Directive.

It is obvious that Quebec was isolated from the remainder of Canada while deviating from philosophy from the standard Law from the CNUDCI on the electronic trade^259(*) and inevitably from the LUCE^260(*). The other provinces chose all to be harmonized to facilitate the exchanges. Quebec seems, for its part, to show a different interest. Indeed, while following the European provisions, Quebec is harmonized with Europe what will support, can be, the exchanges with the latter.

The mode of responsibility founded by the LCJTI must be read like coming to supplement the general principles of the civil liability. The common right thus did not completely disappear.

Paragraph 2 : Combination of the new right with the common right

Specific laws were worked out to answer the characteristics of Internet network. The common right according to any logic, should not apply any more in certain situations in connection with new technologies. However, it proves that these specific legislations combine rather well in general with the common right of the civil and penal liability (A). Sometimes, the judges seem to prefer to apply the mode of the editors or directors of publication to the PSI (B).

A) Common right of the civil and penal liability : always applicable

The common right remains applicable on the network even in the presence of a special text since it cannot envisage all the possible case of application. This common right of the responsibility thus will make it possible to fill the gaps of the new laws, as well for the civil liability (1) as for the penal responsibility (2).

1) The civil liability

France and Canada are of different legal design. Indeed, one is a common lawyer and the other is mainly of common law. Quebec on the other hand, has a clean characteristic since it is about a Canadian province of mixed duty which combines these two designs. The civil liability comes under the field of the property and the civil laws. It is thus the right of each province which regulates these matters^261(*). Consequently, our study will be limited to the analysis of the Québécois and French legislation.

The people receiving benefits, before the installation of a specific mode and in a preoccupation with a repair of the undergone damage, were subjected to the liability for fault^262(*) or for the things^263(*). Sometimes, the courts retained the responsibility for the PSI on the base of the theory of the risk. Indeed, the latter tie profit of their activity, were to undergo the consequences of them and to thus ensure the incurred risk^264(*).

The new articles (art 43-7 to 43-10) inserted in the Law of September 30, 1986 relating to the freedom of communication^265(*) do not allow any more, in theory, the application of the common right^266(*). Thus it will apply whenever a civil wrong is made up such as for example, the direct participation in the creation of an illicit site or its opening. Moreover, the provisions of the LCJTI^267(*) come to supplement the general principles of responsibility founded by article 1457 for the Civil code of Quebec.

The special modes founded by the various legislative texts seem to set up a kind of responsibility for heavy fault which would be more rigorous than the common right based on articles 1383 for the French Civil code^268(*) and 1474 for the Civil code for Quebec^269(*). For example, it « Directive constitutes not only one responsibility for fault, but still a responsibility for fault characterized for the person receiving benefits who confines heavy fault »^270(*). Indeed, the heavy fault is made conspicuous by the fact that it « indicate an unconcern, an imprudence or a coarse negligence »^271(*). It is thus the fault of a particular gravity which would not make a reasonable person or one « good father of family »^272(*). The French Law of August 1, 2000 also devotes a responsibility for fault since « actually it is well a personal fact which is in question, precisely an abstention »^273(*).

Certains PSI remains subjected to the common right, since the new right did not plan anything for the latter, except the LCJTI^274(*). Indeed, the responsibility for the suppliers of services of reference concerns the French common right, for the moment. For example, by creating a bond, its author is likely to cause a damage with others because of the illicit contents of the site towards which it refers and thus, engages its civil liability on the base for article 1382 of the French Civil code. Moreover, it will be responsible if by creating a bond or by maintaining it, it missed with its duty diligence or of prudence under the visa of article 1383 of the same Code^275(*). These rules also apply to the suppliers of search engines.

It is undeniable that the responsibilities, civil and penal, have a base different with regard to repair from the victim. Indeed, whereas the civil liability is the legal obligation which falls on a person to repair the damage caused with others, the penal responsibility aims at sanctioning a person who commits an offense.

2) The penal responsibility

In the penal plan, an individual can see his committed responsibility insofar as the proof of its punishable intention is reported. The rules on complicity can also apply since is accessory to a crime or an offense that « who knowingly, by assistance or assistance, in facilitated the preparation or consumption »^276(*).

The new Québécois provisions apply only for the civil liability. On the penal level, it is thus always the common right which applies. Nevertheless, certain authors launched the idea to amend the criminal Code in order to insert there a penal responsibility for these technical intermediaries^277(*). On the other hand, for the French right, new article 43-8 of the Law n° 2000-719 of August 1, 2000^278(*) founds a mode of responsibility as well on the civil level penal^279(*). The common right thus applies only in a derogatory way as for the civil liability. The same applies to the Project LEN^280(*) which envisages in article 43-9 as « the people designated in article 43-8 can see their penal responsibility committed only if, with full knowledge of the facts, they did not act with promptitude to put an end to the diffusion of information or an activity of which they could not be unaware of the illicit character ».

The creators of bonds hypertexts and search engines are subjected to the general criminal law, as for the civil liability^281(*). They can engage their responsibility, either as direct author of an infringement, or, more probably, like accomplice, on the base of article 121-7 of the French Penal code, to have provided with full knowledge of the facts a help to the commission of the infringement. The rules relating to the infringements of press can also apply.

B) The mode of the responsibility for the editors or directors for publication : a responsibility in « cascade »

In the absence of specific provision, the judges applied to the PSI the responsibility for the editors or the directors of publication. Currently, the situation is quite different. Indeed, Project LEN states clearly that the leading responsibility under producers for services for audio-visual communication is excluded for the PSI^282(*). As regards violation of the press laws, the Law of July 29, 1881 defined a mode of responsibility in cascade^283(*). This system of responsibility was transposed to the sector for audio-visual by the Law n°85-1317 from December 13, 1985 relating to the audio-visual communication^284(*). The judges thus applied it to the sites telematics, then with the whole of the services of communication on line. Indeed, the technical intermediary was considered in certain cases an editor because of his will to publish contents on its waiter. But of many authors disputed this assimilation^285(*). The PSI cannot thus be regarded as « producers » within the meaning of the Law on the audio-visual communication^286(*). Moreover, articles 12 to 15 of the Directive on the electronic trade do not aim the activities of production and edition on the network. They thus remain subjected to the common right of the responsibility. However, it should not be forgotten that the responsibility for the PSI remains subsidiary, since the first person in charge is before all the author of the illicit contents. Gradually, the new legislations set up a kind of responsibility in cascade specific to Internet^287(*) since it would be too difficult to establish the functions of each person receiving benefits. Indeed, their « roles are not very definite, volatile and the bonds existing between the sometimes transitory actors and little transparencies »^288(*).

The process of installation of the new legislations relating in particular to the mode of responsibility for the PSI, thus knew many bounces and a long training. Before all new provisions coming to clear up it, these PSI were systematically regarded as the persons in charge for the presence of contents considered as illicit or offensive for the victim. Moreover, the judges their imposed more or less rigorous obligations which created a climate of insecurity for the latter. The contradiction of certain court orders did not arrange the situation. Thus the legislator intervened to try to clarify the responsibilities for these PSI by founding a mode of consensus based on a conditional responsibility.

Section II : The conditional responsibility : a mode of consensus

The legislators European, French and Québécois tried to find a balance between an automatic responsibility and a total absence of responsibility. They then chose to tend towards the way of the reason, as professor ALIVE Michel recommends it^289(*) (§1). The PSI are thus subjected to a mode of exemption or limitation of responsibility (§2).

Paragraph 1 : A responsibility « of reason »

The PSI profit from a mode of responsibility for « reason »^290(*), because it proved to be illogical that they are held responsible for the presence of illicit contents circulating on the network, whereas they were not at the origin of the damage undergone by the victim. Indeed, it should not be forgotten that in theory, the first person in charge is the author of the illicit contents (A). It appears then interesting to analyze the exact content of the new mode of responsibility set up (B).

A) The first person in charge : the content provider

While making the PSI responsible without it not having an indeed criticizable behavior, the judges went against the civil law, even if they acted in a preoccupation with a repair of the victim. Indeed, in a logic of responsibility for fault in the civil plan, that which cannot act or which is in a situation where to abstain from is legitimate, cannot see its committed responsibility^291(*).

Consequently, it seems clear that the comparative responsability to the illicit contents circulating on Internet network necessarily falls on that which is in the beginning, that is to say the content provider^292(*). This last « is the person who places information at the disposal of others, by sending an electronic mail to one or more recipients, while contributing to a newsgroup, by publishing Web pages,... »^293(*). However, the fact that Internet is transborder and anonymous causes certain difficulties of setting concerned of the responsibility for these suppliers. Indeed, those prove often impossible to identify because of this anonymity^294(*). Therefore the current legislations, European and Québécois, stress the identification of the illicit authors of contents ; but there still, there can be other problems. In any case, in a preoccupation with a repair of the undergone damage and fault of being able to find the true author of the litigious message, a new system of responsibility was born. Indeed, the PSI will be able to be seen reproaching certain behaviors and thus engaging their responsibility^295(*).

B) Contents of the principle of responsibility

The first person in charge according to a quasi-universal consensus, which is that makes the decision to disseminate information on Internet (1). However, the PSI remains responsible in certain cases envisaged by the texts (2).

1) Service providers Internet a priori irresponsible

The PSI from now on are subjected to the principle of irresponsibility a priori^296(*) which takes for starting postulate, that they can be held responsible only under certain conditions^297(*). Consequently, they become responsible if they take share with the diffusion of information by exceeding their functions^298(*) or if they are informed of the illicit character of the contents diffused on Internet network, that they had the capacity to act and that they did not do anything to withdraw it or prevent his access^299(*). The responsibility for the actors of the network is thus committed on the base of trinomial « to be able- to know- inertia »^300(*). It is necessary that these three conditions are met so that the person receiving benefits, in particular the supplier of lodging, is held responsible^301(*). It seems logical thus to hold responsible that which with the technical possibility to intervene and which remains inactive by not taking measurements necessary and reasonable to cure the disorders^302(*).

The American courts anticipated this principle in particular by the business Cubby v. CompuServe^303(*) where the court judged that CompuServe was not able to know the diffused messages and thus did not engage its responsibility. In France, the judges also intervened by retaining the responsibility for the shelterers who held the capacity of « to go to check the contents of the site » and which could « to take measurements if necessary likely to put an end to the disorder which could have been caused with a third »^304(*).

An analogy with the common right of the responsibility can be raised here, since the supplier will be in fact responsible held, if it makes a fault characterized by the new texts^305(*). The latter thus did not set up a mode of responsibility sui generis but only one complement at the common right in order to take account of the particular characteristics of Internet^306(*). These last thus made it possible to release from the factors of charge of responsibility.

2) Various factors of charge of responsibility

The principle of irresponsibility founded a priori by the various legislations is implemented so certain conditions are joined together. On the faith of trinomial « to be able- to know- inertia », the PSI will be held responsible if it is established that it had a control on information (to be able) (A), that he was informed of the illicit character of this information (to know) (b) and finally, that there remained inactive (inertia) (c). An analogy can be made with the French former jurisprudence which had released from the obligations of action, vigilance and information. However, it is interesting to note that the current French law on the freedom of communication poses one case of charge of responsibility for the supplier for lodging, that is to say the refusal of obtempérer promptly to the legal authorities when they were seized to prevent the access to the litigious contents^307(*).

a) The control of information

The criterion of the control of information is an element determining to characterize the intensity of the responsibility to be retained against the PSI. It is about pre-necessary with the charge of the latter^308(*). Thus the degree of control that the various actors will exert, will influence it. Indeed the fact of exerting a control on information will make it possible to more easily engage the responsibility for the PSI. On the other hand, that which does not have any control on the information disseminated on the network will have a responsibility less rigorously.

It is necessary to distinguish two cases from possible controls of information. Initially, there is the control of the contents called also leading freedom and in the second place, the physical control of information^309(*). Leading freedom results in the discrétionnaire choice carried out by the person receiving benefits to publish such or such information. In this precise case, the supplier incurs an important responsibility since it controls the contents of his waiter^310(*). On the other hand, it goes from there differently when it exerts an effective physical control on information. Indeed, in this case, the supplier with the possibility of withdrawing information or of preventing of them the access in order to cease very turbid on the network. It does not have the same capacity as the precedent since it exerts only one control a posteriori. Its responsibility will be thus lighter because it does not control the publication of information.

Consequently, this criterion of the control of information is very important to charge any responsibility to a PSI. But so that it can exert a control, it is necessary that it is informed of transmitted information.

b) The knowledge of information

This criterion is that which will make it possible to charge the responsibility for the PSI because of presence of illicit contents to the network. The various legislations mention that the person receiving benefits sees his civil liability committed in two cases. The first case is if it is informed indeed of illicit information, and the second, « facts or circumstances according to which the activity or illicit information is apparent »^311(*). This criterion will make it possible to release the PSI of any responsibility if it is established that it was not informed in fact any of transmitted illicit information. Terms « manpower » and « in fact » must « to be included/understood like returning to a knowledge of the established facts and certain, verifiable by its own means, in opposition to a supposed knowledge, of which the judge makes sometimes use »^312(*). The illiceity must thus be obvious and seem proclamation even with a not-professional of the right^313(*).

The PSI is responsible also penally, if it abstained from acting « with full knowledge of the facts » according to French Project LEN. The legislator places himself thus on the ground of the obviousness since it aims at the fact that the shelterer could not be unaware of the illicit character of information^314(*). This term, « with full knowledge of the facts », joined the first used for the civil liability. It is surprising that it is made a use of similar term but nevertheless different in the same law.

It as should be noted as because of the absence of obligation of monitoring activates, the omission to supervise cannot constitute a fault and consequently, the PSI cannot be supposed to know the content of the conveyed documents^315(*). Indeed, it is impossible for these intermediaries to know and check the contents of all the messages sent or stored. On the other hand, the situation is quite different when they act as editors on the network. In this case, they are supposed to have a knowledge of information that they decide to publish on Internet network^316(*).

Consequently, as soon as they are informed of the illicit character of conveyed information, they are held responsible. In other words, it is enough that they were informed of the illiceity of the message so that their responsibility is committed. However, it proves to be difficult to determine the moment when the person receiving benefits is informed indeed of the illicit character of information and his necessary degree to generate this responsibility. These questions will be treated further in the development.

To summarize, the PSI urges its responsibility to have transmitted litigious contents if the proof is reported that it was informed of the illicit character, that it had the capacity to put an end to the disorder and finally, that it did not do anything to cease the disorder.

c) The absence of action

The last criterion of imputability of the responsibility is that of the inertia of the PSI which knows that information is illicit. It is about the case where it does not act promptly to withdraw information or to make the access to those impossible^317(*). Concept of « promptitude » can apply only to the supplier whom with the possibility of intervening. It implies that it is advisable to act without delay and « as soon as possible »^318(*). The supplier should not in no case to remain inactive. He has an obligation of reaction as soon as he is informed of the illicit character of information^319(*), not to engage his responsibility^320(*).

The new mode of responsibility « of reason » based on the trinomial one « to be able- to know- inertia » the PSI exonerate when the conditions above above mentioned, are met. It is not any more from now on automatic.

Paragraph 2 : Exemptions or limitations of responsibility

The exemptions or limitations of responsibility released to limit the illicit contents on Internet network were given according to various activities' of the PSI (A). The latter will be responsible as soon as they are informed of illicit facts on their waiters, without to have a general obligation of monitoring (B).

A) The absence of general obligation of monitoring

The PSI are not subjected to a general obligation of monitoring of information nor to that « to actively seek facts or circumstances revealing of the illicit activities »^321(*). This obligation marks a rupture with the French jurisprudence which went in the opposite direction since it imposed « a true obligation of monitoring and preventive censure to the load of the people receiving benefits »^322(*). This article was set up to limit the responsibility for the people receiving benefits who would be tried to exert a preliminary control as for the admissibility of contents and thus to attack the freedom of expression^323(*).

According to the report/ratio of Mrs TABAROT of February 11, 2003 on Project LEN, this provision poses « a principle of nongeneral responsibility and a priori of the technical intermediaries because of the contents which they lodg or diffuse ». In other words, they are not responsible if they actively do not supervise the contents which they store or diffuse^324(*). On the other hand, they are free to do it. This exemption ceases since they decide to start to play an active part in the transmission or the diffusion of documents, in particular when they decide for example to interpose between the police force and the documents^325(*).

There is not thus general obligation of monitoring for the PSI what is logical because of the exorbitant volume of information conveyed on the network. Nevertheless, they are responsible, in certain precise cases, and according to the activity which they exert.

B) Determination of the responsibilities according to various activities'

The PSI are very numerous and exert fuzzy and vague functions^326(*). Indeed, the determination of their respective roles is a true problem. That is explained by the fact why they tend to qualify themselves to escape their responsibility. One thus should not be confined with the qualification given by the latter, but rather be interested in the activity which they really carry on. Another difficulty is that the majority of the professionals of Internet cumulate the technical roles under various denominations^327(*). This is why the courts deal with certain obstacles as for the separation of the multiple functions. This confusion can be sometimes found in the texts and the court orders. Nevertheless, the legal texts succeeded in releasing from the activities such as simple transport (1), the access to the network (2), the forms of storage or the activity known as of « caching » (3), lodging (4) and finally, services of reference (5).

1) Simple transport

The activity of simple transport is subjected to a total absence of responsibility^328(*). However, these people receiving benefits must respect the principle of the obligation of neutrality^329(*), since it is impossible for them to know the contents of transmitted information. They cannot in no case to intervene in the transmission of the conveyed messages^330(*). They have a passive role and must keep it^331(*). If they do not do it, they engage their responsibility because of an extension of their activity. Consequently, they should not be at the origin of the transmission, nor to intervene in its destination and its contents and finally, the storage period of information should not exceed time reasonably necessary to the transmission^332(*). In contrary case, they engage their responsibility since they will not be any more simple operators of transmission. The criterion of knowledge does not apply for these people receiving benefits because they have, in theory, no control on transmitted information^333(*).

2) The supplier of access Internet

The FAI is that which places at the disposal of its customers average techniques giving access to them Internet network and various services, such as receiving and sending mail^334(*). This intermediary, just like the operators of telecommunication, does not know the contents of the documents since it does not have to play of active role in the transmission of the documents^335(*) ; if necessary, it exceeds its functions and consequently, will not be able to profit from the mode of exemption of responsibility^336(*). Like the precedents, it is subjected to an irresponsibility of principle, if it exerts its functions without taking an active share in the information storage^337(*).

In France, the FAI is subjected only to only one obligation which is that to inform and to propose to the subscribers software of filtering or control. This intermediary is thus subjected to the common right of the responsibility^338(*). There is thus here a clear contradiction between the Community legislation and the French right since such as it was already previously exposed the Directive on the electronic trade subjects the FAI to a principle of irresponsibility provided that he does not exceed his functions^339(*).

3) The activity known as of « caching »

They are a temporary form of storage copies sites and services the most asked or consulted on waiters relay installed by the FAI. This storage makes it possible to improve time of connection and to avoid the obstruction of the network^340(*). This activity is subjected to an irresponsibility under condition. The intermediary is not responsible if it meets the conditions envisaged by the law. For example, as soon as it intervenes in the contents or the diffusion of the document or, as soon as it promptly does not withdraw stored information or the access impossible to the latter does not make whereas it is informed indeed of its illiceity, the supplier of mask engages his responsibility because of its active share in the transmission of the document^341(*).

The criterion of knowledge reappears for this technical intermediary, but there still, it is difficult to know the necessary degree to consider that it knew and had thus the obligation to act to withdraw the stored document^342(*). Article 13 subparagraph 3 of the Directive on the electronic trade reserves for the States the possibility of providing that a jurisdiction or an administrative authority can impose to the person receiving benefits (« caching » and of simple transport^343(*)) of the obligations of control a priori bearing on the contents^344(*). An injunction could thus be addressed to him in order to put « a term with a violation or which it prevents a violation »^345(*).

4) The supplier of lodging

This technical intermediary is that which carries out « a durable service of storage of information which domiciliation on its waiter makes available and accessible to the people eager to consult them »^346(*). The trinomial one « to be able- to know- inertia » applies to this last. It is thus irresponsible under certain conditions. It is held responsible if it has in fact knowledge of documents with illicit contents, that it with the possibility of intervening and that it does not act promptly to avoid the disorder^347(*). It does not have, like the preceding intermediaries, to exceed its functions of shelterer if not it will not be able to profit from the exemption of responsibility^348(*). This person receiving benefits must thus close or make the access impossible to the litigious documents by preserving the rights of the thirds^349(*).

In France, this intermediary is not a priori responsible^350(*), since the Law of August 1, 2000 sets up one case of charge of responsibility. The shelterer is responsible only if « having been seized by a legal authority, it did not act promptly to prevent the access to these contents »^351(*). This system is also in contradiction with the Directive on the electronic trade.

5) Actors of navigation

These PSI cover various activities such as the indices, the hyperlinks^352(*), the repertories, the directories^353(*) and the search engines^354(*). With the difference in the other legislations, the LCJTI, like American law DMCA^355(*), envisages a mode of responsibility specific for the services for reference^356(*). These intermediaries are subjected to an irresponsibility under conditions as for the suppliers of lodging. Indeed, they are responsible if they know that the provided services are illicit and that they promptly do not cease the supply of such a service.

The Law of August 1, 2000 as well as Project LEN, do not envisage any system of specific responsibility for these PSI. On the other hand, an analogy with the responsibility for the shelterers can be made^357(*).

To conclude on this second chapter, it is interesting to retain that the development of the new laws passed by many attempts for finally releasing a regulation combining with the common right. The PSI from now on are subjected to an irresponsibility a priori being able to exonerate them if the conditions defined by the texts are met. The legislators of the studied countries thus chose this solution for éradiquer the illicit contents circulating on Internet network. This new system however does not appear satisfactory on certain points, even if it is still early for truly analyzing the effects of these legislations. These last while making it possible the PSI to withdraw information or to make them inaccessible, introduce a new censure into the legal system. This remedy can, at first sight, seem even antidemocratic radical. But, on another side, it seems justified by the plethora of illicit contents circulating on Internet network.

CONTAIN II

STAKES OF THE APPLICATION OF THE CENSURE LIKE MEANS OF REGULATION

Internet network is inevitably an ideal vector for the proliferation of illicit contents. Moreover, these contents cause more or less serious damage with the Net surfers who must start judicial actions against the PSI since the true author is too often nonidentifiable. For these reasons, the legislators, European and Québécois, worked out a system authorizing the exercise of the censure in order to limit the presence of the illicit contents on the network and thus to limit the responsibility for the PSI. This censure seemed the solution with the problems. However, it should not be forgotten that the latter requires demanding conditions for application in order to avoid any potential abuse. Indeed, it seems an inadequate and excessive solution for countries which are said democratic and free (Chapter I). There exists, nevertheless, of the palliatives which allow certain adjustments as for its exercise (Chapter II).

CHAPTER 1

THE EXERCISE OF « CENSURE OFFICIAL » : AN EXCESSIVE SOLUTION

The States had to intervene to regulate Internet network by the means of new laws. These laws were necessary since it was necessary to clarify many points and especially, to limit the too great latitude taken by the Net surfers which think, still today that, Internet is a place where all is allowed. However, the right always applied there. The new legislations aim thus to clear up the roles of the PSI, whose functions appear sometimes a little vague. Their roles on the network allow them at least for some, to have undoubtedly a certain control on the contents circulating on their waiter. This possibility of intervening on these messages likely to cause disorders reinforced their responsibility. Indeed, it would seem that from now on, the PSI will become the «judges» or «police officers» of the contents diffused on Internet (I). These extensions of capacities, and more especially the attacks brought to the right to the life deprived by the use of legal» or «official» censure the «, can appear truly necessary and legitimate, even in democratic and free countries (II).

Section I : PSI : « judges » or « police officers » of the contents diffused on Internet

The new legislations worked out a principle of responsibility founded on the trinomial one « to be able- to know- inertia »^358(*) which grants the various PSI of the capacities which can seem surprising for simple people receiving benefits (§1). Moreover, these laws, in spite of their undeniable utility in the explanation of the respective roles of the various speakers on Internet network, are not therefore very satisfactory. Indeed, they comprise many limits and sometimes complicate more than they do not specify (§2).

Paragraph 1 : An extraordinary role for the PSI

The PSI are found in a rather uncomfortable position since the installation of the new legislations. Indeed, the legislators theirs allotted the capacity to judge in a their imposing obligation of reaction^359(*). It would thus seem that these PSI became them « judges of the contents »^360(*) or them « police officers of the networks »^361(*) (A). This new role allows them, thanks to the support of the law, to exert a serious and contrary act with any principle of a free and democratic company, the censure (B). However, drifts and abuses orchestrated by the Net surfers, and more particularly by the young people, justify-they not of such measurements?

A) « judges of the contents » or it « organizes networks »

The new legislations force on the PSI to act as soon as they are informed of the illiceity of contents on their waiter by withdrawing it or by blocking it without any legal intervention^362(*). They must thus appreciate the character sells by auction or not this information^363(*). They replace the judges thus^364(*) or « [see] to confer itself, good liking badly liking, a kind of police role, which is not it [their] »^365(*). However, these people receiving benefits are not able to carry out a legal assessment of these contents, since that does not raise in any manner of their role. Indeed, it is necessary to prove this illicit character and the illiceity is not evaluated in the absolute. It is thus difficult for simple people receiving benefits to establish the border between what is licit and what is not it^366(*). This blur can lead to drifts, even with abuses on behalf of these people receiving benefits whose values personal morals will be requested even implicitly^367(*). For example, they can be brought to remove contents being able to generate disorders with Net surfers whereas a judge would not have can be taken such a decision^368(*).

In spite of that, it should not be forgotten that the presence of illicit contents circulating on Internet network constitutes a problem, in particular for the young people who see a means of voyeurism there and défoulement impressive. The legislators tried to cure it by setting up the suppliers in « judge contents »^369(*). This solution east cannot be not satisfactory, but seen the width of the damage carried out on the network as well by the racist sites as pedopornographic, it seemed necessary to intervene quickly^370(*). The only person who can make the police officer and thus act diligently on Internet is incontestably the PSI. However, it must be framed to decrease the potentials abuse.

The legal authority does not miss completely in this new system. Indeed, the judge will be able to intervene, in particular to put an end to any damage, either by stopping the information storage, or by blocking the access^371(*). Moreover, it should not be forgotten that very often the judge will intervene for « to rule on the adequacy of the behavior of the shelterer to the situation and, lastly, on the licit or illicit character of the data blamed »^372(*). The legal authority thus keeps, all the same, a certain control a posteriori on all that a PSI can carry out on the network.

Consequently, the new legislations transformed the PSI de facto into pseudo critics^373(*). This solution can, at first sight, appear astonishing since the exercise of the censure remains a serious act in a free and democratic company.

B) The delicate exercise of the censure : a serious act

Pleasing Internet network of the conclusions surprising for democratic countries where normally the freedom of expression constitutes a fundamental principle. Indeed, the exercise of the censure^374(*) was always regarded as a dangerous exception^375(*). However, since the problems generated by the expansion of the network, the countries decided to choose this way as sine qua non solution^376(*). Why have made such a choice ?

One of the first brief replies is that there are photographs obscenes more and more, of virtual pedophilia or prostitutions on the network^377(*). It is thus necessary to limit the rights and freedoms of the Net surfers on the network. It is besides for this reason that certain countries such as China, Cuba or South Korea chose to exert a real and firm censure on the network^378(*). They thus block a good number of electronic sites and the access to Internet. It is obvious that the democratic countries like Canada and France are not ready to adopt such an extreme measure. But the exercise of the censure by these countries proved for the legislator like necessary, even inevitable. How can we justify such a legal orientation in free and democratic countries being ?

To start, it should not be forgotten that the first victims are unfortunately the minors who surfent hasardeusement on Internet^379(*). They are found consequently, confronted with illicit contents being able to harm to them^380(*). Then, this practice seemed the simplest answer to eliminate these contents. It thus makes it possible to avoid their massive diffusion. Moreover, the undergoing legislator of the pressures of the groups of lobbying wanted a solution fast. Thus the PSI became the means of intervention to fight against this plague. These new laws enable them, consequently, to act quickly while withdrawing or by blocking any message which can cause any disturbs with the Net surfers. Moreover, that also enables them to limit the setting concerned of their responsibility on Internet. Indeed, by eliminating the illicit contents from the network, they attenuate the fact to be held responsible for the presence of undesirable information on the network.

The PSI must thus exert a kind of « censure private « « out it judicial power », being able to carry out a radical attack with the freedom of expression, by the removal of the contents, without preliminary intervention of the judge »^381(*). However, it should be specified that French Project LEN sets up a procedure against the potentials abuse the thirds in order to prevent the possible overflows^382(*). This role of « private critic » thus calls into question the fundamental principles of presumption of innocence, of freedom of expression and competence of the judicial power to return justice^383(*). An essential question can, consequently, occur which is to know if the attacks with the freedom of expression, paramount right, will become a current and banal practice on the network.

The legislator by allotting the right to censure to the PSI their thus offered a great capacity of appreciation, which explains criticisms formulated against Project LEN^384(*). Indeed, the majority of associations declare this text liberticide^385(*). Nevertheless, the legislator all the same granted at organizations the capacity to control the intrigues carried out on Internet network. Thus in France, the Higher Council of Audio-visual (SCA) had been seen granted initially, this function of regulation of the network^386(*). This attribution making run much ink^387(*) led the legislator to finally deciding to leave Internet the sphere of the SCA which would only be occupied from now on « of audio-visual communication radio television »^388(*). On the other hand, it goes from there differently to Quebec since the Council of broadcasting and Canadian telecommunications (CRTC) announced on May 17, 1999 that it did not want to regulate Internet^389(*). It thus refused to legislate on the illicit contents circulating there since it considered that the current legislation was sufficient. However, the Québécois Net surfers think on the contrary that this organization should control the network as can do it the Control of the cinema^390(*). Moreover, many are those which do not include/understand this absence of responsibility for the CRTC which could completely exert a control on Internet. Of course, an organization of control will not solve all the problems generated on the network. The best example on the matter is that of Australia with its Broadcasting Services Amendment (Online Services) Act of 1999^391(*). It gives competence to Australian Broadcasting Authority (ABA) to control the contents available on the network thanks to the denouncement^392(*). It classifies the various Australian contents according to dimensions'^393(*). This country is the first industrialized country to exert a true censure^394(*) without taking account of the technical reality of Internet and especially of the basic rights such as the freedom of expression. Moreover, this very criticized law, did not solve the problem of the pornographic sites consulted by the minors on the network^395(*).

The censure thus appeared for the legislator as the possible solution to control Internet. It contravenes the starting idea of the network which is, it should not it be forgotten, a space of freedom even if it is necessary, that it becomes about it also a space of right^396(*). Indeed, it is obvious that this measurement is not attacked in the middle of the problem since « to remove the sites in racist matter does not dam up racism ; to remove the contents of pedopornographic nature does not solve of anything the problems arising at the company by the pedophilia »^397(*). This is why the censure east cannot be not the solution to be developed for free and democratic countries saying itself. Moreover, the authors Nathalie COLLARD and Pascale NAVARRO state in their treating work of the pornography, that « rather to prohibit these images, we are used for ourselves of important mechanisms to fight them : education, prevention, sensitizing. These measurements have much more their place in a democracy that the censure »^398(*).

The various solutions released by the new legislations thus brought more or less satisfactory solutions, but one needed emergency to counter the proliferation of the illicit contents circulating on the network. The problem is that the censure can have considerable perverse effects. It is necessary thus well to frame it and control it in order to prevent the potential errors. Moreover, it should not be forgotten that the nondemocratic countries use it with excess. The question thus remains always outstanding : is or not necessary it to censure ? For the moment, the only unquestionable thing is that the new laws applying this censure comprise many inconsistencies and limits which can have serious repercussions.

Paragraph 2 : Limits of the new legislative systems

The provisions installation thus present some limit which are explained initially by important gaps (A) then in the second place, by a complete lack of precision and clearness (B).

A) Important legislative gaps

Serious gaps are thus present in the new legislations. Indeed, some of them do not have procedures of withdrawal and notification in the event of illicit contents circulating on the network (1). This failure can prove to be a true problem. But especially, it should be stressed that certain protagonists of the network do not have a very clear statute what can reduce the confidence of the latter and Net surfers in the use of Internet network (2).

1) The absence of procedure of withdrawal and notification

The authorities tried to develop complete laws, but especially being able to apply efficiently to Internet. But it seems that these legislations do not comprise procedure of withdrawal and notification. However, these procedures are necessary for the good course of the withdrawals or blockings of litigious information, even sometimes even of restoration of Web pages. Without these last, the PSI can do what good seems to them in a discrétionnaire way and the Net surfers find themselves without any recourse to denounce or take advantage of their rights.

Europe is not yet leaning on these procedures, even if :

« Article 14 (1) (b) constitutes the base of the development by the interested parts of procedures of notification and withdrawal concerning of information illicit and prejudicial. (...) At the time when the directive was adopted, it had been decided that this one would not regulate the procedures of notification and withdrawal. Article 16 and considering it 40 encourage rather expressly the car regulation in this field »^399(*).

Moreover, the Directive on the electronic trade^400(*) states in its article 21-2 that the European Commission will have to submit to the European Parliament, the Council and the Economic and Social Committee a report/ratio before January 17, 2003 on the need in particular for presenting proposals relative to « procedures of notification and withdrawal (note and take down) and the charge of the responsibility after the withdrawal for the contents ». However, for the moment, it would seem that the Commission is late in the development of this report/ratio since nothing was given for the moment, on this point. However, the Directive took as a starting point the the American legislation, the DMCA^401(*) which sets up procedures of « note and take down »^402(*). These last determine the formal requirements to which the notifications made by the various plaintiffs (third-victim must answer : author or having right) and methods of the withdrawals of the contents to be respected by the intermediary. They can give place to sanctions in the event of abuse (punitive rammings) and thus allow a better legal safety^403(*).

The French Law of August 1, 2000^404(*) at all does not refer to this kind of procedure^405(*). The same applies to the LCJTI^406(*). However, of many authors, such professor Pierre TRUDEL, consider that it is necessary to refer to the American law and thus to use the procedures which it sets up^407(*). Soon, France will obtain a new law following the adoption of the Project LEN^408(*) which does not forget to insert the procedures of notification. Indeed, the French legislator preferred to set up one « optional procedure of notification intended to carry the existence of certain litigious facts to knowledge » of the PSI^409(*). It should be specified that this kind of procedure makes it possible to protect these people receiving benefits against the possible disputes made against the potentials withdrawals or blockings.

Consequently, it is obvious that the new legislations comprise some important gaps. The second is also surprising, since certain protagonists of Internet seem to be forgotten during the drafting of the new laws.

2) Uncertainty for certain actors of Internet network

The actors of Internet whose mode of responsibility is rather vague are the suppliers of tools of research, of forums of discussions (newsgroup)^410(*), clavardage (cat)^411(*) or bonds hypertexts. These various activities were forgotten by certain legislators, in particular by the legislators European and French. Indeed, the suppliers of tools of research and the creators of hyperlinks do not have a mode of responsibility defined in the Directive on the electronic trade nor in the Law for August 1, 2000. Nevertheless, the European text asks the European Commission to present a making report/ratio « proposals relating to the responsibility for the suppliers of bonds of hypertext and services of search engine before January 17, 2003 »^412(*). However, no report/ratio has, for the moment, summer announced on this subject. The same applies to the French law which literally forgot them in its drafting. Thus these PSI remain subjected to the common right of the civil and penal liability. The doctrines are confused on the mode of responsibility applicable to these actors^413(*), but in general, it applies common de jure system to them^414(*). It is besides what recommends the Forum of the rights of the Internet^415(*) for the creators of hyperlinks^416(*) and the organizers of forums of discussions on the network^417(*). However, it would seem that the mode of responsibility for the supplier of lodging could also be applicable for these protagonists^418(*). In the United States, the DMCA^419(*) envisages provisions relating to the responsibility for the creators of bonds hypertexts but limited to the acts for counterfeit^420(*). The LCJTI also has a treating article of the responsibility for the services of reference. They can, in particular, engage their responsibility if they have in fact knowledge which the services provided are used for the realization of an activity in illicit matter and which they promptly do not cease serving them^421(*). However, the organizers of forums of discussions are not aimed by this article.

This absence of clearness in the mode of responsibility for these actors involves a certain insecurity on the network. However, they are very important in the operation of the network. This situation by which they were forgotten or treated in a summary way by the various legislations can appear surprising.

B) A lack of precision and clearness

The legislator wanting, at all costs, to work out an applicable legislation on the network in order to « to promote a surer use of Internet »^422(*), east can have gone too quickly in its development and thus missed rigor on certain points. Indeed, it would seem that industry exerts important pressures on the government in order to regulate the overflows exerted on the network^423(*). Moreover, it is stated in a European decision of 1999 that the objective is to encourage « an environment favorable to the development of Industry related to Internet »^424(*). The same applies to Quebec since the CRTC openly declared that Industry on Internet was to develop without being limited by any regulation^425(*).

The new legislations can appear very obscure as for the distribution of the functions of PSI and thus be badly interpreted by the courts. Indeed, the various activities defined by the laws are not always very clear and sometimes, the functions of a supplier could return in the field of application of several of these activities. Each person receiving benefits carries on a specific activity on the network definite in a fuzzy and vague way, where each one of them tries to limit its responsibility by qualifying itself. The courts are then in the obligation to interpret the roles of these various actors of Internet without being for as much certain than that corresponds truly to the will of the legislator. This confusion can have repercussions over the court orders^426(*), but also in the comprehension of the legislative texts. Consequently, the judge should not confine himself with the qualification given by the latter but rather, to be interested in the activity really carried on on the network.

Other failures are visible in the new legislations. Moreover, they appear very serious since they touch with the field of application of the law. Indeed, certain expressions used by the legislator are not defined or appear vaguer than envisaged. The legislations use the terms of « effective knowledge » or of « promptitude » without their giving definition. But especially, it should be noticed that many questions are without answer or have only insufficient brief replies. Indeed, how can we determine this « effective knowledge » ? Which is the degree of necessary knowledge to engage a responsibility ?^427(*) How the PSI it is seized at the time of the presence of illicit contents circulating on the Internet ? For how long must it block a document on the network ? When can we affirm that an activity or illicit information is « apparent » ? The intermediaries must censure all information which they consider illicit ? All these questions will find their answers in the interpretation which the judges of the new laws will make. The problem is that it is not certain, once again, that the various courts put forward the will of the legislator and, of the difficulties will be able can be to provide, as well as uncertainties or contradictions.

The new mode of responsibility also involves another disadvantage quite as serious since it places the PSI in a bad position. Indeed, according to the current mode, the PSI must withdraw or block all the contents considered to be illicit as soon as they are informed of it. However, this action can have important effects on the responsibility for these intermediaries. They can be thus seen reproaching by a third for not having removed or blocked litigious information but also, they can engage their responsibility if they carry out too quickly a withdrawal of perfectly licit information^428(*). This situation can appear very contradictory, and especially uncomfortable, for these actors who see, in all the cases, their committed responsibility. Moreover, in Québécois right, the LCJTI does not expect that one civil liability with regard to the PSI. No penal responsibility was envisaged. The common right applies thus in any occurring litigation. Thus the legislator will have to modify the Canadian criminal Code if it wishes to institute a penal responsibility which adapts to new technical realities^429(*).

Lastly, French Project^430(*) LEN brings an innovation. It sets up an inversion of the burden of proof which is against the principle of presumption of innocence^431(*). Indeed, a presumption of illiceity is set up in order to reduce the burden of proof of the applicant. Thus the contents circulating on Internet network will be supposed illicit^432(*). The victim will not have to prove it. The same applies to the other laws since the PSI will have to carry out the withdrawal or the blocking of information on request and if he considers that the latter is apparently illicit. The author of the illicit contents will have to then show that it did not commit any misdemeanor and any offense.

The various actors of Internet saw themselves granting functions enough surprising which will show, in the long term, if they are effective. For the moment, the legislator offers to the latter capacities of judge and critic who are normally contrary with the principles of any democratic and free country. Indeed, these measurements carry reached to considerable rights like the rights of the person. These recognized rights as being fundamental cannot be blocked except in quite precise cases. Internet seems one of them. Indeed, the illicit contents circulating on Internet network do not cease progressing for the greatest satisfaction of the young Net surfers. At this point in time a substantial question can be raised : these attacks are they necessary and legitimate vis-a-vis to the right to the private life ?

Section II : Attacks necessary and legitimate to the right to the private life

The illicit contents circulating on Internet network pose important disadvantages everywhere in the world as well in the democratic countries authoritative. For the moment, it seems still too early for truly knowing the stakes and the damage which Internet can cause on the behavior of the Net surfers. Moreover, no study currently gives the impacts of them. However, the laws apply to the network and what is in general illicit in the real world, is also in the virtual world. So the restrictions on the freedom of expression also exist on the network (§1). This limitation falls under a preoccupation with a safety which is accompanied by a desire of identification on behalf of the legislator (§2).

Paragraph 1 : Restrictions on the freedom of expression

The freedom of expression, fundamental principle in a democratic company, always made run much ink and even more, since the appearance of Internet network. Indeed, at the origin, the ideology of Internet, it should not be forgotten, was to allow the individuals of all nationalities, all religions and all cultures to be expressed freely without any obstacle. Nevertheless, as we could many and to underline it many times, the remarks of some of them led to the limitation of the freedom of expression. Thus we will study initially, the bases of this freedom (A) to delay us, thereafter, on its limits (B).

A) The base of freedom of expression

Many Net surfers consider that « on the Network all must be able to be said, it is interdict to prohibit »^433(*). Philosophy originating in Internet is thus the idea of an absolute freedom without any constraint such as for example, the intervention of the State. Indeed, the libertarians defend the idea that the network keeps its embryonic principle in spite of the deviances noted by certain Net surfers. They want that there remains a space of ideal exchange « where the diversity of the opinions has to thrive »^434(*).

The principle of the freedom of expression is proclaimed in various national and international texts which protect it. First of all, the freedom of expression is guaranteed by many European texts such as article 10 of the Convention of safeguard of the humans right and of fundamental freedoms^435(*) which states that :

« Any person is entitled to the freedom of expression. This right includes/understands the freedom of thought and freedom to receive or communicate information or ideas without there being able to be interference of public authorities and without consideration of border [but] the comprising exercise of these freedoms of the duties and the responsibilities [it] can be subjected to certain formalities, conditions, restrictions or sanctions ».^436(*)

Thus the freedom of expression can be subjected to certain restrictions framed by strict conditions. Indeed, interference in a protected right « must be envisaged by the law, to aim at a legitimate goal and to present a character of need in a democratic company »^437(*). There is not thus absolute freedom without any limitation. However, the European Court of the humans right indicates that « the freedom of expression constitutes one of the essential bases of a democratic company, like one of the paramount conditions of its progress and the blooming of each one »^438(*). This is why this freedom protects as well « the information or ideas accommodated with favor or considered as inoffensive or indifferent, but also (...) those which run up against, shock or worry the State or an unspecified fraction of the population. Thus want it pluralism, the tolerance and the spirit of opening without which it is not democratic company »^439(*).

Then, article 19 of the international Pact relating to the civil laws and political^440(*) also guarantees this freedom of expression and adds to it, there still, a restrictive provision. Indeed, it enacts that this freedom can be restricted if these limits are expressly fixed by the law and that they are necessary « with the respect of the rights or reputation of others [and] with the safeguard of national safety, law and order, health or public morality ». Moreover, article 20 of the same text lays out as « propaganda in favor of the war is prohibited by the law and any call to national, racial hatred or chocolate éclair which constitutes an incentive with discrimination, the hostility or violence is prohibited by the law ». These articles take as a starting point the article 19 of the universal Declaration of the humans right^441(*) of December 10, 1948.

In Canada, there are also texts guaranteeing this freedom of expression. It is about article 2b) of the Canadian Charter of the rights and freedoms^442(*). It states that « each one has following fundamental freedoms : b) freedom of thought, belief, opinion and expression, including and other the mean of communication freedom of the press ». For the supreme Court, it represents most important of freedoms in a free and democratic company^443(*). It stated besides in a famous stop Irwin Toy Ltd. C. Quebec (Attorney General)^444(*), the object of this freedom which is « [to ensure] that each one can express its thoughts, its opinions, its beliefs in fact, all the expressions of the heart or the spirit, also unpopular, unpleasant or protestors are they ». Thus the supreme Court protects any even unpopular speech^445(*) insofar as the expression employed is not violent^446(*). Indeed, in the stop Irwin Toy, it was recalled that « in fact, the freedom of expression is the guarantee that we can communicate our thoughts and our feelings, in a nonviolent way, without fear of the censure »^447(*). This freedom thus has a paramount place in the Canadian company which reserves to him a protection rather close to that of the United States, with the difference, however, that it can be limited on the base of the article first of the Charter. Indeed, this article allows certain restrictions on the rights protected by the Charter. It lays out that « the Charter guarantees the rights which are stated there. They can be restricted only by one legal provision within limits which are reasonable and whose justification can be shown within the framework of a free and democratic company ». The judges released « a method of analysis to determine if the justification of a limit imposed on a right or a freedom can be shown within the framework of a free and democratic company »^448(*). They apply the test released in stop R. v. Oakes^449(*). It acts initially, to check if the objective of the government translates an urgent and real concern and, in second place, to measure the proportionality between the objective and disputed measurement. This last condition is divided into three stages. On the one hand, the legislation must have a rational bond with this objective; in addition, it must deteriorate the least possible the violated rights of the Charter and finally, it is necessary to find balance between the legislative objective recognized like sufficiently important and the extent of the violated right. Once this evaluation carried out, the judges can determine if the attack with the freedom of expression is justified or not under cover of this article first of the Charter.

There also exists in Quebec a Charter of the rights and freedoms of the person^450(*) who affirms the freedom of expression like fundamental freedom^451(*). Indeed, article 3 of the Charter lays out that « any person is titular fundamental freedoms the such freedom of conscience, the freedom of religion, the freedom of thought, the freedom of expression, the peaceful right to meet and the right of association ». With the difference of the Canadian Charter^452(*), this text has only one quasi constitutional statute but has however a place privileged in the hierarchy of the standards. It protects the rights and freedoms of the person against all violations in the private reports/ratios. The Canadian Charter, on the other hand, will be applicable to the private actors only if the violation of a basic right by a private part results from an act of legislative nature or an interaction with a public officer or a government agency^453(*).

France has also a constitutional text guaranteeing this freedom of expression which is the Declaration of the rights of man and of the Citizen^454(*) of 1789. It states in its article 11 that « [it] free communication of the thoughts and the opinions is one of the most invaluable rights of the man; any citizen can thus speak, write, print freely, except answering of the abuse this freedom in the cases determined by the law ». This text does not have any legal authenticity in a strict sense term^455(*). The French government can consequently limit this freedom by the law. Moreover, there is an arsenal of legislative texts restricting it^456(*).

The freedom of expression is without question a basic right in any free and democratic company. On Internet, this principle remains identical. As we could notice it, it is guaranteed and protected by a plethora from texts. However, this freedom of expression is not absolute since only « it is not good to be too free »^457(*). Indeed, the Net surfers tend to misuse easily the great latitude which the virtual world of Internet offers. Thus this freedom of expression, so often asserted by the users of the network, knows a certain handing-over in question. Moreover, as we already could expose it, the censure, attack direct with this freedom, became a kind of solution of principle on the network.

B) Difficulties related to the exercise of this freedom on the network

The restrictions on the freedom of expression on Internet network always caused and, still cause, of important debates and interrogations. Indeed, of many partisans « libertarians » wish that Internet remains a space of total freedom where all can say themselves or be made without no control coming to censure their remarks. They want that this tool remains the space of freedom par excellence. However, the network is a tool of propaganda, overflow and défoulement impressive. A freedom of absolute expression generates the proliferation of this kind of action and misdeeds. For or the freedom of expression counters on the network is the substantial question which we will try to answer. Initially, it should be specified that various designs clash on Internet. Initially, there are the American absolutism and Canadian who founds a kind of « informational paradise »^458(*) on the network (1) and, in second place, the European relativism which appears more mitigated solution (2).

1) American and Canadian absolutism : one « informational paradise »

The United States has a very libertarian,^459(*) single ideology in its kind, because of famous the First Amendment of the American Constitution^460(*). It lays out that « the Congress will not relative make any law with the establishment of a religion or by prohibiting the free exercise ; or restricting the freedom of word or the press ; or right of the people to be assembled peacefully, and to address petitions to the government for a repair of its wrongs ». This text thus does not make it possible the government to limit or to even harm the freedom of word, practically absolute right in this country. Consequently, American has a very broad vision of this freedom and all can be said and be done on Internet. The American design considers that this freedom is an element founder and essential in their democracy and that very reached with this element is an attack with this freedom. Thus the right to be expressed freely allowed to judges supreme Cour of the United States to declare unconstitutional several laws tending to restrict it. For example, the Communication Decency Act protecting the minors against information with undesirable contents present on the network, voted in 1996 by the Congress, was censured by the supreme Court. Indeed, this Court considered that two of its provisions were against the First Amendment of the Constitution^461(*).

This vision absolutist of the freedom of expression can sometimes shock, especially for the European countries, since the racist speeches, revisionists and the majority of the explicit sexual messages are protected by this text. This First Amendment really allows it the Net surfers, for example, of saying and writing absolutely all in « hiding » behind this one? Can they defame without risk, call with the murder or even diffuse images paedophiles thanks to this so-called absolute freedom ? It is obvious that not. Although the principle is total freedom on the network and that it founds a haven of peace for many delinquent Net surfers, the supreme Court seems to want to release from the limitations moved by the defense of the public interest^462(*). Indeed, the obscenity^463(*) or the childish pornography^464(*) is not protected by this amendment. This is why also the American law « sanction racist behaviors, not remarks. A violent control, not of the wounding words »^465(*).

Sometimes of course, this First Amendment appears to even authorize inadmissible remarks disturbing for certain people and in particular for the minors. For example, the forums of discussion are the place dreamed of the young people who want to exchange opinions or any other information on the same center of interest. These forums allow a dialog with complete freedom and sometimes skids can occur. Indeed, the young people défoulent there or there discover a new form of sexuality. Nevertheless, to dam up these excesses, of the regulators are present to supervise the messages placed at the disposal of the public^466(*). Unfortunately, all the forums do not have any^467(*). For this reason some clavardages are subjected to no control and in addition, with any censure. The question is then to know if they should be left without control. More especially as many contents are likely to be illicit. Until where can we tolerate certain remarks guaranteed by the freedom of expression ?

The United States prefers that the network autoréglemente even if if certain things can offusquer. The cultural differences of this country make that it dissociates rest of the world, which involves serious problems of exequatur decisions. However, American is not only since Canada has a rather similar design, even if the restrictions are apparent.

Indeed, Canada has a rather broad approach of the freedom of expression. The Canadian supreme Court, in its decision R.C. Sharpe^468(*), declared that :

« The right to the freedom of expression rests on the conviction that freedom of movement of the ideas and the images is the best way towards the truth, personal blooming and the peaceful coexistence in a made up heterogeneous company people whose beliefs diverge and are opposed. If we do not like an idea or an image, we are free to oppose or simply to us to divert us to it. In the absence of sufficient constitutional justification however, we cannot prevent a person to express it or present it, according to case's.

The freedom of expression is however not absolute. Our Constitution recognizes that the Parliament or a provincial legislature can sometimes limit certain forms of expression. General considerations, such prevention of the hatred which divides the company, as in the Keegstra stop, above mentioned, or the prevention of the damage which threatens of the vulnerable members of our company, as in Butler, above mentioned, can justify the prohibition of certain forms of expression in certain circumstances. Because of the importance of the guarantee of freedom of expression, any attempt aiming at restricting this right must however be the subject of a very attentive examination ».

As for the United States, the freedom of expression, in Canada, is not absolute. It makes it possible to ensure the democracy^469(*) and pluralism. Thus even the ideas most unpopular, unpleasant, protestors^470(*) and distort^471(*) must be able to appear and express themselves freely. The Charter very guarantees contained of an expression, except if it takes a violent form^472(*). The judges recall that the censure is a practice incompatible with freedom and the democracy^473(*) and in addition, in one « free and democratic company ». Nevertheless, it is necessary to limit certain contents such as the youthful pornography and the obscenity^474(*) diffused on the network. For example, first is sanctioned in article 163.1 of the criminal Code. This article was considered by the supreme Court constitutional in the majority of its applications and bearing reached to the freedom of expression guaranteed by article 2 (b) of the Canadian Charter, in some others. Indeed, it is regarded as unconstitutional if it can prohibit :

« with [one] adolescent to have in its possession, there still exclusively for its personal use, of the photographs or the video recordings sexually explicit of itself, only or in company of another person with whom it is devoted to a legal sexual activity. The inclusion of this material bordering in the field of application on prohibition encroaches heavily on the freedom of expression and adds little to protection that the provision ensures the children ».^475(*)

This precision returns in the logic of the freedom of Canadian expression since the private sphere should not be controlled by the State. It is about a right guaranteed by the Charter^476(*). Of course, certain things are not allowed, but it should not be forgotten that the right to be expressed is a fundamental principle for any person without consideration of age in particular. However, of the questions can be also posed, like the following ones : What can we tolerate ? What can we repress ? Can we say all that we want on the network at the time of a private conversation ? Where the correspondence or the private conversation starts and where that finishes which is public ? On Internet, this distinction appears much more difficult than in the real world what causes many debates besides^477(*). Indeed, the possibility of communicating with a great number of anybody using only one « click » the distinction makes difficult.

Canada and especially the United States thus have a broad design of the freedom of expression. The majority of the speeches are protected what can surprise, and sometimes even, to shock the European countries and more particularly France. These intellectual disparities are amplified with Internet which disseminates everywhere in the world information which does not correspond inevitably to the ideology of the receiving country. From where the following question : the Net surfers are they ready to assume the consequences of the universalization of information and, in particular, to tolerate the multiple approaches of the freedom of expression of the countries located at only one « click » of distance ?

2) European relativism : a more mitigated solution

It should be recalled that it « freedom of expression is the rule and it enjoys the a legal protection of most level as well at the national level as international »^478(*). In Europe, this freedom also constitutes a fundamental principle for a democratic company^479(*). The restrictions exerted on this right must respect the criteria of article 10 of the European Convention of the Humans right. These measurements must be envisaged by the law^480(*). Moreover, this text gives on the freedom of expression a transborder character. Indeed, the Member States can be opposed to freedom of movement information only in the respect of paragraph 2 of this article^481(*). This last allows the emergence of European common standards thus.

Recently, Europe knew a wave of fight against racism and xenophobia. Indeed, of the important French decisions intervened such as the business Yahoo^482(*) and the business I Show^483(*). They show the passion of France for the fight against racism, negationnism and the revisionist on Internet. Moreover, some regarded these decisions as a threat for the freedom of expression « even like a chief of work of futility, because of the transnational character of Internet »^484(*). The judges, thanks to these last, want to prohibit all forms of racism on the French territory and even to impose it on the other countries, as in the United States for example^485(*). However, the latter refuse this contrary design with their First Amendment. France founded many limitations with this law, envisaged by multiple laws. This freedom thus is very framed. This design testifies to « French taste for all to legislate, sometimes until our consciences, as one still saw with the law on the sects »^486(*). All cannot thus be said in France. This tendency to all to legislate brings a certain concern since from now on, a moved word can involve continuations.

The same applies to the pedophilia which knows many legislative interventions. Indeed, the European countries want to dam up this activity which uses the children. The freedom of expression cannot be asserted in this case of figure because the protection of the children is larger, even if the child is touched indirectly. For example, in Spain a minor was done stopped to have diffused material paedophile^487(*) and in the United Kingdom, five arrests took place within the framework of operations anti-pedophilia on Internet^488(*). There is several similar cases which increase with the wire of time on the network. Moreover, the police officers are overflowed by the number growing of sites paedophiles^489(*). France has a very reprehensive regulation for this kind of facts, as we already could expose it. Only one image putting in scene a minor is punishable by the law^490(*). Moreover, the exchange of photographs became something of banal and very widespread on the network in particular on Internet Relay Chat (IRC). However, true « drive out » to the paedophiles installation itself even if it is still difficult to catch them because the majority is abroad.

It should not be forgotten that Internet is a fabulous means to be made hear on all the subjects with the detriment of the authorities or the authority of the country, which sees of an evil eye that certain ideas are propagated there. Indeed, « for the first time, each one can, thanks to Internet, to address itself to the remainder of planet, without having to require authorization of anybody. What to frighten all those which want to control information, to supervise what is said, to filter what their citizens can learn from their turpitudes and their exactions »^491(*). The undemocratic countries are the first to prevent the information flow on the network. They prefer to block, to even remove the accessible contents on Internet. Consequently, it is preferable to better control Internet to avoid the overflows to proceed automatically to the censure. The latter is however exerted concretely, in particular by Douanes Canada^492(*). Then should not one exert same control on Internet ? Of course, the mass of information is not the same one what poses a true problem.

In short, the freedom of expression brings a rather paradoxical debate since on the one hand, the fundamental principles of a democracy want that us meanings all kinds of speech and on the other hand, it is impossible to authorize certain intrigues under cover of this famous freedom of expression. Indeed, all should not be allowed on the network. The freedom of each one finishes where that of the others starts. Each one of us opens out and thinks differently what necessarily returns in conflict with the freedom of expression. For this reason it seems difficult to slice on the following questions : for or the freedom of expression counters on the network ? Should it be censured ? The question is especially to know if there are other means less Draconian than the censure. For the moment, the legislations found a means of checking the contents looked by the young people while trying to make the network more transparent thanks to the identification.

Paragraph 2 : The desire of identification on the network

One of the points black of Internet is that it is difficult to supervise it for multiple more valid reasons all the ones the others. However, the motivation of the legislators to control it is before all the protection of the minors, then obviously, the stop of the made infringements. The problem is that the network makes it possible any individual to be expressed or do what he wants without being afraid of fallen down of his acts or his words. Indeed, the absence of identification on the network, supplied with the use of a pseudonym (nickname), involves a feeling of being able and freedom which pushes the Net surfers with going further in their remarks than in the real life. They forget them thus « limits imposed by the right in the exercise of the freedom of expression »^493(*). The transparency could solve much problems. But, the identification of the Net surfers appears difficult, more especially as anonymity is a corollary of the freedom of expression (A) and that, even if the new laws show a tendency to want to identify the connected people (B), many individuals rise against, by feeding the debate.

A) Anonymity : corollary of the freedom of expression

Anonymity thus constitutes a corollary of the freedom of expression. It is about an integral part of the latter. Indeed, anonymity makes it possible many people to be freely expressed without fear of reprisals or of « what will say one ? ». These last feel lighter and protected by this famous anonymity. Moreover thanks to this last and to the freedom of expression, the racist sites or negationnists are not close disappearing from the network. This anonymity is guaranteed by several European and French texts. Indeed, this principle is recognized by articles 8 and 10 of the European Convention of the Humans right. According to these texts, each individual is entitled to the respect of his private life and his correspondence and « there can be interference of a public authority in the exercise of this law only in so far as this interference is envisaged by the law » and that it constitutes a measure necessary in a democratic company. It also states that any person is entitled to the freedom of expression, right which includes/understands freedom to receive or to communicate information or ideas without the interference of a public authority and without consideration of border. Thus any person is free to communicate what it it likes without fearing that the authorities come to control its remarks because that would encroach on its private life. The Net surfers thus have the right not to be identified on the network and thus to express themselves freely. Moreover, the Council of Europe recognized a certain right to anonymity in order to ensure a protection against the monitorings on line and to support the free expression of information and ideas^494(*). However, because of the increase in the illicit contents circulating on Internet network, it would seem that a tendency to identification develops.

This right to anonymity is also guaranteed by the French laws in particular by the Law relating to daily safety^495(*). Indeed, this law points out the general principle of anonymisation stated in article 29 modifying the L32-3 article of the Code of the stations and telecommunications. This last lays out that « operators of telecommunications (...) are held to erase or make anonymous very given relating to a communication as soon as this one is completed ». Moreover, anonymity is a right protected by the French Civil code to article 9 which lays out that « each one is entitled to the respect of its private life ». But also by various laws such as the Law relating to data processing, the files and freedoms of January 6, 1978^496(*). It states in its article first that data processing does not have « to conflict neither with the human identity, neither with the humans right, neither with the private life, nor with the personal freedoms or public ». The personal data must be protected and controlled. Anonymity is thus an integral part of the dimension of the protection of the life deprived as well as the freedom of expression. Any person must be able to be free not to name herself and its personal data do not have to be used inopportunely by no matter whom or for anything.

Quebec also has a regulation on the protection of the private life founded on the Civil code^497(*) and the Charter of the rights and freedoms of the person^498(*). The personal information is not generally revealed, unless the government or the legal authority does not have the right of it. However, of uncertainties reside in the discretion of the supplier. Indeed, some raise the following question : « what of the supplier of services Internet happenhappens who communicated to a third the code of user, the password and static address IP of his customer without his permission ? »^499(*) In theory, this information belongs to the private life because they make it possible to collect personal information on the Net surfer. This is why these data can be communicated only to one legal authority, guarantor of the personal freedoms. A supplier cannot thus communicate to thirds data in personal matter relating to his subscribers, except within the framework of a legal procedure. This interpretation respects the rights of the people and more particularly the right to the private life.

Nowadays, technology makes it possible to very easily recover personal data on the network with our detriment. It is thus important to pay attention and to hide as much as possible very given presenting a personal character. The data-processing hackers or other pirates can recover this information and use them in an illicit way. To be anonymous can prove to be a sedentary means to avoid these nuisances. Moreover, the network provides all what it is necessary to sail in an anonymous way on the fabric. It does not matter that we are beginner or an expert of data processing, there is always somebody, either a site or a Net surfer, to help us in the event of difficulty.

On Internet, the Net surfers think that the use of anonymity forms integral part of the exercise of the freedom of expression in particular on the forums of discussion. However, a decision of the supreme Court of the State of Virginia recalled that « the First Amendment of the American Constitution, devoting the principle of the freedom of expression, did not guarantee the anonymity of the person »^500(*). For the United States, the freedom of expression is not the corollary of anonymity and on the contrary, it would have as a corollary the responsibility. Moreover, a question arose of knowing if it were necessary to regard anonymity as not allowing more the application of the mode of exemption. In theory, the first person in charge is the author of the contents but if it is not identifiable, subsidiarily, the responsibility for the PSI will be required. Anonymity would thus constitute one of the factors starting of the responsibility^501(*). Thus the idea appeared that the network needed more than transparency and traceability in order to fight the illicit contents.

B) Anonymity with the identification : a well fed debate

Since its origins, Internet is regarded as a space of not-right maintained by the idea that we all are anonymous on the network^502(*). This belief generated the commission of the majority of the infringements. However, it is not completely true since the police officers or the companies can recall the Net surfers thanks to various techniques. Indeed, there is the technique of the cookies, the specialized software making it possible to identify and collect information concerning us and, address IP^503(*). It is sure that these means do not allow an unquestionable identification but it remains however possible.

The identification on Internet must be reinforced if we want to find a person in charge and to thus make apply the right. Indeed, « a responsibility does not exist without identification »^504(*). The first person in charge, as we already could mention it, is the content provider which is anything else only the person who produced the illicit message. So that the mode of responsibility centered on the author for the act can function correctly, it is necessary to be able to identify it and to recall it on the network. It is because of this anonymity that the responsibility for the PSI was brought into play. It is indeed difficult to assign an individual who preserved his anonymity from where need for bringing into play the responsibility for the supplier at the place of the author of the act. Moreover, the Council of State A clearly shown in one of its reports/ratios. Indeed, it states that « if anonymity is an illusion on the networks, it is often difficult to detect the real identity of the individual having made the infringement; it thus appears essential to improve the traceability of the messages and the identification of the actors in order to be able to take action of responsibility »^505(*). The identification on the network is thus announced important.

The difficulty which arises with the identification is that that touches the protection of the private life and human dignity. Indeed, while asking the Net surfers to be identified, of the abuses can occur and the data collected can then be used and revealed with no matter whom. By consequence, many Net surfers are afraid that this collection serf to supervise them and to recall them. For example, we can notice that the companies use some of these data to send not requested publicities. It is then legitimate to worry more especially as it is very simple to have access to private data on the network^506(*). However, « it will be up to the operators to take the required measures to prevent a use of these data at ends other than those fixed by the law »^507(*). Moreover, it should not be forgotten that only the legal authorities will be able to require the lifting of anonymity or the personal data communication in order to preserve the identity of the Net surfers. Moreover, the higher Court of Ontario ordered with a PSI to provide the identity of a Net surfer, author of a defamatory courriel in order to be able to start an action of responsibility^508(*).

The majority of the new laws set up a system of identification in order to recall the possible delinquents and thus to put an end to this anonymity. The events of September 11 2001^509(*) occurred in the United States reinforced this tendency to the identification and traceability^510(*). Indeed, France is an example with its Law on daily safety^511(*). This law refers, as we could expose it in a preceding development, with the anonymity of the contents of the exchanged correspondences or consulted information. However, even if the principle « of anonymisation »^512(*) is recalled, reality is very different. Indeed, for reasons of safety, it acts more than one obligation of identification controlled rather than of a right to anonymity^513(*). This last corresponds in fact to a right to make known itself of the public only through the use of a pseudonym since the suppliers must collect a minimum of information on their customers. They have the obligation to preserve the personal data and to place them at the disposal of the legal authority. The Law of August 1, 2000^514(*) poses, with regard to these technical professionals, an obligation of collection and of detention of information on the people lodged failing this, they engage their civil or penal liability. They must also place at the disposal of the public a certain number of information as with the legal authorities which can require communication of it. It institutes thus « a legal status of transparency and excluding any anonymity from the creators and editors from services from communication on line »^515(*). However, it seem that all these people receiving benefits do not collect the desired information or do not check the authenticity of the latter what does not contribute with the identification of the customers and the will of transparency on the network.

Europe decided to identify the actors of the network, in order to make it sedentary. Indeed, article 5 lays out that the Member States take care that any person receiving benefits makes possible « an easy, direct and permanent access, for the recipients of the service » with information allowing to identify it^516(*). Of course, this obligation adapts very badly with the general framework to freedoms^517(*). Moreover, the Commission of the protection of the private life indicates that the provisions of the Directive on the electronic trade do not allow « a systematic identification of the users, under penalty of transforming the suppliers of access into auxiliaries of police force within the framework of investigations in general matter »^518(*).

Project LEN^519(*) takes again this provision by imposing the identification of the authors of contents. It seems logical to put a little more transparency on the network since it is necessary that each supplier is able to provide the identity of his customers in particular within the framework of an investigation of police force^520(*). However, it should be specified that this project preserves the anonymity of the Net surfers. Indeed, the nonprofessional people publishing a service of public communication on line are held only to provide a minimum of information to the public. Moreover, the suppliers are fixed with the incontestable professional secrecy with the legal authorities. The project also envisages sanctions in the event of nonrespect of these provisions. The use of the pseudonym is the means recommended for France and it appears the best solution to satisfy a good number of people.

The LCJTI^521(*) also envisages a system of identification of the Net surfers, but while trying to guarantee the protection and the confidentiality of the personal information. It envisages the conditions of use of the means likely to ensure the confidentiality of the documents. Article 40 lays out that « the identification or identity check must be done in the respect of the law ». It is also envisaged in article 41 that a technological document being used to identify a person must be protected from the interception when it is preserved or transmitted on a communication network, in order to avoid the usurpation of the identity of the person concerned. Lastly, article 43 states that no one cannot require that the identity of a person be proven by means of process which carries reached to its physical integrity. It is also interdict to recall a person unless the law does not envisage it expressly. The use of biometrics is also envisaged by the law in articles 44 and 45.

To conclude on this point, anonymity is a sedentary means of « surfer » on the network without being identified by people dishonest persons. However, it is necessary it to acknowledg, it is as because of the latter as Internet became one « jungle » where some were believed completely free of saying what they wanted thanks to the right to the freedom of expression. The selected intermediate solution, is to allow the pseudonym to the Net surfers and to provide personal information only to the only legal authorities. This choice respects the rights of the person thus and corresponds more to the idea of a free and democratic company where Internet remains a space of freedom.

Thus Internet remains a place of freedom and in addition, a place of proliferation of illicit or offensive contents which appear difficult to remove or to regulate in a truly effective way without carrying reached to basic rights such as the freedom of expression or the right of the people. To cure or try it to apply a brake at it, the solution adopted by the States was the censure. It is about radical a enough means for free and democratic companies. It should all the same be specified that the countries tried to find a balance between a total freedom and a complete censure of the contents considered to be illicit or prejudicial on the network. This balance is difficult to reach, as we already could expose it. Moreover, one should not forget only the network disregards geographical border, which limits the application of the national laws. Indeed, the States can govern only the activities proceeding on their own territory. This restriction imposes necessarily the use of other means to supplement the legislations which cannot always be with « the point of technology ». However, it should be specified that as of its origin, the network used already these processes. Indeed, it was autoréglementait thanks to the development of average techniques of control set up by the Net surfers and the professionals of the network. This autoreglementation appeared insufficient. The right had to intervene by the means of laws in order to control the illicit contents coming from all planet. However, these techniques have a considerable role in the regulation of Internet network^522(*) since they make it possible to supplement the new lacunar legislations but especially, they adapt perfectly to this new mean of communication^523(*).

CHAPTER 2

PALLIATIVES WITH THE EXERCISE OF THE CENSURE : ALTERNATIVE AND COMPLEMENTARY SOLUTIONS

The actors of Internet network, and even the governments, encourage the development of solutions alternative or complementary to the right which rest on the use of techniques. In a general way, they make it possible to mitigate the exercise of the censure, very criticizable and very criticized solution, but especially they make it possible to answer the problems caused by the international aspect of Internet. Thus the autoreglementation is « presented like a more flexible alternative, more adapted to realities of the network, even more democratic than the public regulation »^524(*). There are several forms of autoreglementation. Initially, quasi-legal controls which were developed by various processes (I) then, the international aspect of Internet which obliged the States to develop a world regulation (II), a long-term solution.

Section I : Quasi-legal controls

The quasi-legal controls carried out on the network require a combination of various techniques of regulation which can be done on two levels. On the first level, it is a question of controlling information with the diffusion. These processes can be regarded as a source of right (§1). On the contrary, on the second level, control is carried out with the reception of information. In this case, they are techniques resting on the basis of voluntariate (§2).

Paragraph 1 : Controls of the diffusion : a source of right

It is necessary to make Internet network surer in order to make safe disseminated information and to protect the Net surfers who y « surfent » against the illicit contents^525(*). It is thus important « to found rules of good control in the international environment and the cyberspace »^526(*). Thus the civic spirit of the Net surfers was requested and that appeared Lex electronica with the uses and it « Netiquette » (A), then them « codes of good control » (B).

A) Lex electronica : uses and the «Netiquette»

Initially, it should be specified that « Internet is not No man' S Land legal where it would be imperative to legislate »^527(*). Indeed, as of its origin, the community of Net surfers laid down homogeneous rules of control based on the operation of the Community model in which the individual must conform to the rules, under penalty of seeing itself reproaching its behavior by the others. There is a true pressure on behalf of the community which dictates these rules. For example, on the forums of discussions, of the Net surfers saw themselves reproaching their behavior and thus, were made exclude from the group^528(*).

This form of autoreglementation released from the principles constituting Lex electronica. It can be defined as indicating « sets of rules framing the activities being held in virtual space resulting from the connection of the computers according to protocols Internet. Lex electronica is presented in the form of a unit comparable with Lex Mercatoria governing certain relations between tradesmen in the international transactions »^529(*). It thus institutes rules of practices of correct operation of the network. This standard constitutes the reference of behavior honest, useful and correct to adopt on Internet. It is not the product of an official institution, but the result of actions followed, wished and respected on behalf of the Net surfers. They feel obliged, even constrained to follow these rules. Moreover, these standards have a certain obligatory value whose sanction is, in general, the exclusion of the person who enfreint rules.

Lex electronica also contains like source the uses and it « Netiquette ". The uses constitute usual rules released by the practice which accept them and usually follow them in their activity in margin of the traditional legal institutions. There is thus a follow-up of the principles. These uses are more close to the users, because these are the latter which set up them in order to govern the interindividual relations on line. « Netiquette », a generalized habit, « mean whole of principles intended to ensure a certain order in space cybernetic which aim at a large variety of subjects or behaviors and formulated in a relatively precise way »^530(*). It is to some extent a code not written, enacting the good behavior to be followed by all the Net surfers without exceptions. However, for some time, of new practices develop by more really not complying with these rules such as for example, the Spamming^531(*) or the invasion of many newsgroups by publicity.

These uses truly appear minimal without being a guarantee of respect on behalf of all the Net surfers. They remain nevertheless very important for a better regulation of the network since « their evolution faster and adapted better to the changes represents the expression of an unceasingly renewed consensus »^532(*). This characteristic makes it possible to take into account the technical evolutions and thus to solve the future problems. Moreover, it should be specified that the official right, even if it applies to a great number of legal situations occurring to the network, does not allow such a control as soon as an element of extraneity between concerned. Indeed, Internet being transborder, the effectiveness of the official right is limited in its application since it is not easily applicable out of its territory. Thus « the autoreglementation constitutes the most promising avenue to stop the inappropriate contents in the Internet^533(*). However, the law must keep its dominating place because certain behaviors are too serious to escape [this one] »^534(*). Moreover, the autoreglementation is a form of control to randomness and limited.

Associations or other organizations also take part in the development of the standards and the rules relating to Internet. They set up codes of good control which come to constitute another source of right.

B) « codes of good control »

Deontologic rules, by the means of codes of good control, were developed on the network by professionals such as organizations or associations in order to enact standards of control applicable to any users. They constitute one « new fashion of production of the right »^535(*). However, these codes have a rather relative value since they do not have of a binding nature. Indeed, no sanction is envisaged in the event of transgression of the latter and the interested parts are free to adhere to it or not.

The professionals, such as the PSI, worked out Charters of adhesion and codes of good control at the disposal of the Net surfers. For example, the Association of the suppliers of access and services Internet (AFA)^536(*) and the Canadian Association of Internet providers (ACFI)^537(*) wrote this kind of codes to inform the Net surfers on the behavior to be followed and adopt on the network. The latter adhere to it of their own liking. These codes explain in particular to the users which procedure to follow in the event of illicit contents.

The new legislations encourage the establishment of these codes of conduct in order to better frame the users and thus to improve confidence and safety on the network. The Directive on the electronic trade^538(*), in its article 16, encourages the Member States to work out codes of conduct which will allow a better application of the legal rules and a more effective protection of the minors. There are some at the European and^539(*) national level. Nevertheless, the Commission notices at the time of his first report/ratio on the application of the Directive that the creation of this kind of code slowed down and that the Member States must continue to support and promote actively the initiatives in this field^540(*).

The LCJTI, as for it, envisages a multidisciplinary committee to support the harmonization of the systems and standards^541(*). This committee must work out guides of practices integrating the recommendations worked out by the medium and not by the government^542(*). It thus will try to frame the control of the speakers, while resting on the will of the latter to agree to implement them in the interest of all. The government will be able to intervene if these guides are not applied voluntarily, using regulations^543(*).

These forms of control are not reliable and are very limited. In general, it is necessary that the Net surfers decide by themselves to respect them. This is why illicit contents are always present on the network. To prevent that children are in contact with inappropriate material, a control carried out with the reception is also necessary to reinforce safety.

Paragraph 2 : Controls with the reception : a voluntary censure

The controls carried out with the reception by the Net surfers are primarily founded on the basis of voluntariate. Indeed, they get a possibility of guarantee to prevent that the children or any other vulnerable public are in contact with contents illicit or prejudicial. There are various forms of control to the reception. There are the systems of markings (A), the controls exerted by the PSI itself (B), the software of filtering (C), the control operated by the parents (D), them « hotlines » (E) and finally, the accreditation or the certification of Internet sites (F).

A) Systems of markings : labels or labelling

The systems of marking make it possible to the Net surfers to sail on Internet with more safety. Indeed, they choose themselves the sites which they want to visualize without being afraid to fall inopportunely on contents not requested and in addition, illicit. Nowadays, the labels develop clearly on the network. This phenomenon can be explained by the fact that they make it possible to return surer Internet and consequently, reinforce the confidence of the Net surfers.

Thus appeared labelling, a deontologic step complementary to that which consists in enacting a code of good control^544(*). It thus will make it possible to the Net surfers to choose the sites which began towards precise commercial practices. For example, these sites comprise the identification of the merchant, the safety of the transactions, personal the data protection, the quality of the service offered. These labels were released by national and international organizations. There are several labels in France such as L@belsite developped at the point by the Federation of the companies of remote sale (FEVAD) and the Federation of the companies commercial and distribution (FCD) ; WebCert of French Association for the quality assurance and TrustInfo of the Chamber of Commerce and Industry of Paris.

These systems of labelling have however disadvantages since information and contents available on a site can vary constantly, which does not facilitate the classification of the sites. On the other hand, it is about a means coming to counterbalance the application of the censure^545(*).

B) Controls of the person receiving benefits

The PSI can carry out controls on the level of the access to the Web sites by various means. They are placed best to control this access and to adopt measures to make it more difficult. The Net surfers, to be able to visualize or arrive at information, must fill certain requirements such as for example the payment of an amount of money or to have the required age, or to pass from the barriers as the introduction of a password before being able to reach a site.

The pornographic sites comprise, in general, a requirement of payment in order to dissuade the young people it to be reached. Indeed, only the adults have, in theory, a credit card. Thus, the sites having a commercial value are accessible only with the help of the payment from a certain amount of money. In general, the people must be members or be subscribed. However, the young people are able to pass in addition to this kind of barrier by obtaining the means of reaching it.

Others babillards electronic require a minimal age of access to prevent that all people considered as vulnerable, for example, consult contents which require the majority. But there still, control remains weak since in general this requirement is founded on the good faith of the user. It is thus simple for a minor to be made pass for an adult. Of course, they are always dissuasive barriers for the children, because all do not have great knowledge in data processing.

Moreover, certain waiters set up policies and mechanisms in order to control the accesses to certain sites by the children. Moreover, from the companies sedentary environments for the children launched, such as « Kid Net » or « Internet in A Box for Kids » developed by CompuServe.

These measurements bring a framing adapted on behalf of the Net surfers themselves in particular by the use of software of filtering.

C) Software of filtering

Internet network is very much used by the young people, at the house generally, without no monitoring being carried out in general. According to the latter, « their parents do not assoient themselves beside them when they are trotted in Internet (68%), that they do not use filters to block sites (65%) and do not check which sites they visited (54%) »^546(*). However, the software of filtering is developed and recommended. Indeed, the new legislations lay out that the FAI must inform their subscribers of the existence of average techniques making it possible to restrict the access to certain services or to select them^547(*). Europe also encourages the Net surfers to use the tools of filtering and classification by taking account of diversities cultural and linguistic^548(*).

This software rests on various methods. They can block the access to Web pages which contain such or such words or which appear in a list or arrive to sites established in a list drawn up by the organization to the origin of the software. This filtering can be done as well for the forums of discussions as for the electronic courriels by eliminating certain messages because of particular characteristics. The companies also developed protocols in order to make the network surer. Protocol « Platform Content for Internet Selection » (P.I.C.S.) aims at facilitating the control of contents Internet on the level of the recipient. It is about a mechanism on which it is possible to found services of calibration and software of filtering. The users can thus have access only to desired information and eliminate those which disturb them.

All this software of filtering is not reliable at 100%^549(*) and they do not present a perfect protection for the young people since « more than one young person out of ten said that it had decontaminated the filters of the computer at the house or the school »^550(*). However, the majority of these tools can block a certain number of undesirable information and prevent that any message does not circulate on the network. They should however be updated to raise their effectiveness. They are necessary and allow the installation of more flexible legislations.

The major problem that this software meets is that they filter information while being based on words or electronic addresses. This kind of classification can appear harmful. Indeed, it can in certain cases censure sites which do not represent any danger, which is completely licit or, on the contrary, to let pass from information which should be blocked. For example, the pornography is easier to censure than are to it the heinous, racist remarks and violent one. Nevertheless, while filtering starting from words, of many sites will be also censured whereas they should not be it. Thus if we prohibit the word « center » or « sex », of many other sites containing these words will be prohibited whereas certain could treat breast cancer or victims of sexual abuse. The same applies to the filtering carried out by electronic addresses, since it can happen that undesirable contents are in apparently acceptable sites.

In spite of multiple defects, the software of filtering remains a good way more especially of supervising and of controlling the sites visited by the young people. Indeed, a control on the level of the reception in the family and educational circle appears more effective thanks to the use of this software which makes it possible to block the addresses of sites regarded as inappropriate in a given medium. They remain however imperfect, this is why a parental control is necessary.

D) Parental control

A Canadian study^551(*) shows that the parents do not know what truly their children do on Internet and do not discuss it with the latter^552(*). The young people seem left with themselves on the network as the figures show it. Indeed, approximately 70% of the young Québécois say being alone when they sail on Internet. The Canadian average accounting for 50% of the young people, moreover, approximately one the third of the young people (36%) says that they remove on the occasion the files and the history which indicate the visited Web sites; that 81% of the teenagers prefer to attend not supervised clavardages. All these figures can alarm the parents. Indeed, the young people seem very free on the network even if the parents lay down rules about Internet like not visiting certain sites (61%), not to give a personal information on themselves or their family (60%) and not to meet in person somebody whom they know only by Internet (54%). Always according to this study, these rules do not comprise any constraining value since they are not imposed on the house according to young Québécois' which frequently use Internet at the house.

It seems y disfonctionnement to have true between what think of knowing the parents and what really the children make on the network. However, there are software making it possible to supervise the child without his knowledge and thus to know all the sites which he visits. It is about software spy. Of course, the children nowadays know some more on Internet than the parents in general what limits the application of this software since they are able to decontaminate them^553(*). However, they remain a good means of monitoring.

It seems necessary that the parents take more conscience of the possibilities offered on Internet while sensitizing and by educating their children to the various contents likely to be visualized on the network. They must learn to the children the dangers from this tool and prevent them in the event of illicit contents. The countries such as France and Canada want to develop the education of the young people and to sensitize the individuals on the advantages and the disadvantages of the network^554(*).

The parents are not left only vis-a-vis this tool since lines of calls were installation to remove the illicit contents of the network.

E) «Hotlines» : mechanisms of telephone description

The States developed mechanisms of telephone description to facilitate the removal of the illicit contents circulating on the network. This control makes it possible to the users to have a certain control on the accessible contents on Internet. As soon as contents present an illegal connotation, the Net surfer communicates with the line of assistance and the persons in charge for the latter proceed to an investigation into the complaint if they estimate that the contents could be illegal. They warn of them then the supplier and the qualified organizations of application of the law. For example, the AFA, member of European network Internet Hotline Providers in Europe Association (INHOPE), with including two associate members with the United States and in Norway, joins together eight lines of emergency call to eliminate the contents paedophiles on Internet and to ensure the protection of the minors^555(*).

These lines have certain advantages. Indeed, they are effective because they make it possible to the Net surfers to complain and to supervise the contents on the network^556(*). They can also play a part of sensitizing and information. Many countries, such as the United Kingdom, Germany, Australia, the United States, France, Ireland, Norway and the Netherlands set up this type of lines to help the Net surfers when illicit contents circulate on Internet. Canada does not have any for the moment but examines the possibility^557(*).

One of last controls to the reception which involves a voluntary censure of information on behalf of the Net surfers is the mechanism of accreditation or certification.

F) The mechanism of accreditation

The massive presence of illicit contents circulating on the network contributed to the movement for fear can have the Net surfers vis-a-vis the services offered on Internet. In order to support and increase the visibility and the notoriety of certain sites, of new activities developed, such as certification. It makes it possible to guarantee a document and to identify it thanks to a third person who carries out checks. That makes it possible to the Net surfers to have a little more confidence in the services, products or organizations which are on the network.

In Quebec, certification is envisaged by the new legislations in particular by the LCJTI^558(*) which devotes a whole section to it. Article 47 defines what a certificate constitutes^559(*) and article 51 states that the services of certification include/understand. It is about « the identity check of people and the delivery of certificates confirming their identity, identification of an association, a company or State or the exactitude of the identifier of an object ». The service provider of certification must be impartial and ensure the integrity of the certificate which it issues^560(*). He is held only with one obligation of means^561(*) and he can engage his responsibility in the event of inaccuracy or for disability of the certificate unless he does not show that he did not make a fault in the execution of his obligations^562(*).

French Project^563(*) LEN also envisages provisions on certification. The service providers of certification will be held civilly responsible in the event of intentional fault or of negligence, in particular if the information contained in the certificate is inaccurate^564(*).

Certification, like the systems of marking, make it possible to the Net surfers to reach sure information not presenting an illicit character. These controls will make it possible to control Internet, but this possibility belongs only to the users who are the only ones with being able to develop them. Indeed, it should not be forgotten that the majority of these tools are founded on voluntariate.

Quasi-legal controls are a means more or less effective of controlling Internet but they have the advantage of not being concerned with borders as can be to it also the network. Indeed, they do not stop at the borders of the various countries as can do it the national law. The latter, like let us know we it, can only apply to its territory. It is thus difficult to frame it by the only national legislations^565(*). Consequently, as soon as an element of extraneity between concerned that involves certain problems that only the international law to solve little and even there still, of the difficulties can provide. However, the countries try to develop a world regulation of Internet network.

Section II : The development of a world regulation of Internet network

Internet network poses important problems of applicability of the laws. Indeed, certain laws prohibit publicity for alcohol whereas in other countries, that is completely licit. The countries thus have legislations based on social designs and different morals what does not contribute to the installation of an effective regulation of the network. Consequently, the fight against the illicit contents must be based on an international co-operation, true solution to be only developed in the long run on Internet where the borders do not exist (§1). Associations and the private sector play for the moment a dominating part in this regulation (§2).

Paragraph 1 : International co-operation : a solution to be developed

The international co-operation seems to be the solution to be developed so that the fight against the illicit contents is really effective. The international organizations noticed it and thus intervened by the means of various means in order to work out the bases of an international law of Internet (A). Recently, the States succeeded in getting along and wrote a Convention on the cybercriminality (B).

A) Interventions of international organizations

The States felt the need to intervene to try to stop this phenomenon of the illicit contents. They tried to release from the common points applicable on the network at the international level (1). The European Community also intervened in order to endeavor to harmonize the rules adapted to Internet (2).

1) The international level

The presence of illicit contents on Internet network found an echo for its eradication. Indeed, the international authorities by the means of many measurements and texts intervened, in general, at the beginning of the appearance of the phenomenon. One of the disadvantages is that there are only co-operations based on the voluntariate of the countries. No sanction or constraint is envisaged. This absence of obligatory force did not make it possible to release from really effective solutions in what milked with the removal of these contents. However, the means recommended by these last are always the same ones nowadays.

An international Working group on the classification of the contents (International Working Group one Content Rating) initially was made up to examine the possibility internationally of setting up an applicable system of marking of the contents. It supports self-regulation to avoid the risks of censure by the State and thus to take into account the various cultural contexts.

An international Network of experts on the contents of the Internet was also set up for a autoreglementation of the responsibility and control on the network. The objectives of this Network of experts are to put forward the best practices based on self-regulation and to improve the co-operation between the countries.

Two international organizations, the Organization for Economic Cooperation and Developm (OECD) and UNESCO intervened to support the co-operation between the countries. The first expressed its wish to control the contents diffused on the network. It wrote hot lines on July 25, 2002 to govern and promote the safety of the systems and networks of information and, to reinforce sensitizing with the risks^566(*). Recommendations will be put forth for the Member States. Second organization, UNESCO, also instituted principles in order to support the international co-operation between the States and of working out applicable common principles on the network. It recommends that the multilingualism on Internet is preserved. November 30 and December 1, 1999 was held with UNESCO the world Summit of the regulators of the Internet which supports the coregulation. Moreover, January the 18, and 19 1999 took place an international meeting of experts concerning « sexual exploitation of the children, pornography implying of the children and pedophilia on the Internet : an international challenge ». Lately, the world Summit on the company of information (SMSI) proceeded from the 10 to December 12, 2003 in Geneva^567(*). On this occasion, a report/ratio was elaborate whose objective relates to the state and the evolution of the company of information and the knowledge^568(*). At the time of this Summit, the right to the freedom of thought and expression was reaffirmed and the creation of a working group on the governorship of Internet was required^569(*).

Canada approached other governments in order to limit the presence of the illicit contents on the network since already a good moment. It joined the United States in 1998 to organize the Forum on the autoreglementation of the contents in the Internet held under the aegis of OECD. Canada also took part in the international conference on the fight against the infantile pornography on the network in 1999, the need for stopping the hatred on Internet in 2000 and in the world Conference of the United Nations against racism, racial discrimination, xenophobia and intolerance in 2001.

As we could underline it, Internet network is not a space without right and the countries, with in particular the international organizations, have as of the beginning shown a serious interest in the fight against the presence of illicit contents on Internet network. The same applies with regard to the European Community.

2) Within the Community framework

The European Community takes part in the regulation of the company of information. Indeed, a Community action plan multiannual aiming at promoting a surer use of Internet by the fight against the messages with illicit contents and prejudicial diffused on the world networks was adopted by a decision of the European Parliament and the Council of January 25, 1999. The aims in view are the development of the autoreglementation, sensitizing near the users, the international co-operation and the encouragement of industry required tools for filtering and systems of grading. The Commission of freedoms and the civil rights, of the justice and the interior businesses (Commission LIBE) of the European Parliament also took a resolution relating to the follow-up of this multiannual action plan. The proposal aims at introducing new elements and adjustments. The Commission recommends the association of the applicant countries to the current activities and the creation of projects supporting the division of the experiments and knowledge. It also envisages to give a greater attention to the illicit contents on Internet in particular to racism and violence, and it wishes a more active participation of Industry.

The European Commission proposed on February 10, 2003 the creation of an Agency in charge of the safety of the networks and information. It will have as a principal function to be a center of expertise and council for all the questions relating to the cybersecurity. The Commission wants to really give birth to a systematic transborder co-operation between the Member States as regards safety from the networks and information.

All these illustrations show that Europe was interested very early in the problems caused by Internet and its real will to regulate the network. They make it possible to work out a whole of applicable rules on the network and thus to release from the common principles which support safety on Internet. The majority of the released solutions same as those are in general developed internationally what makes it possible the countries to set up conventions such as Convention on the cybercriminality^570(*).

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.

Paragraph 2 : The ambitious step of associations and the private sector : an important role on the network

Internet network, as we already could underline it, was autoréglementait at the beginning by the means of the participation of associations and the private sector who have it, thereafter, maintained. For this reason associations preserve a very important ground of action on the network (A). The legislations as well as the international organizations recognize that the private sector must also play an important part for a better regulation of the illicit contents circulating on Internet (B).

A) The dominating intervention of associations

Associations were always very present on the network and can be, even more in France where they have a true capacity of dissuasion. Indeed, during one moment, no French filmographic distributive firm seemed to want to take the risk to distribute new film of Mel GIBSON, the passion of Christ, fear of seeing itself convened in front of the courts by various Jewish associations or of fight against racisms, the revisionism and the anti-semitism. This example illustrates the dominating and dissuasive capacity well associations in France and that, as well in the real world as in that virtual.

Associations on Internet take primarily two forms. They can be specialized or to represent the civil company^579(*). In the first case, these associations were the pionnières of the network by playing a very important part. Many applicable rules on Internet resulted from these last which are very active. They allow the development of principles and behavior to be adopted by the Net surfers by the means in particular of codes of good control or Charters of behavior. Certain associations develop public meetings or discussions in order to be used as relay with the governmental authorities and the actors of the network. It is in these places that a good share of the future of the regulation of Internet network is defined. For example, association Let us imagine an Interdependent Internet network (IRIS)^580(*) as well as Vivre association the Net^581(*) protect freedoms from the Net surfers. The first currently calls into question new French Project^582(*) LEN. It considers that it is liberticide and that it should be amended. It also shows reserves towards Convention on the cybercriminality.

In the second time, there are associations of the civil company which intervene in the field of the Humans right. They deal more particularly of the freedom of expression on the network^583(*) and with the illicit contents. They denounce the serious infringements of the basic rights and sometimes, the presence of an official regulation on the network. Many countries have this kind of associations which preach the freedom of expression on the network. For example, association LICRA^584(*) in France conducted many campaigns of fight against the racist remarks and revisionists on Internet. In Canada, a non-profit-making nongovernmental organization, ÉducationMédias Network^585(*), inform the families, the schools and the communities of the country about the media. It aims to better making known Internet with the Net surfers and its dangers. An international Coalition for Freedoms on Internet ( GILC : Total Internet Liberty Campaign)^586(*) was installation. It gathers a great number of association^587(*) of everywhere in the world.

The regulation of Internet network above all is worked out by the associative groupings which work out the great principles and thus found rules to be followed. These rules have role always such an important even in the presence of new legislations, since they can evolve/move at the same time as new technologies. The private sector has, him also, its share to be played in this regulation of the illicit contents diffused on the network.

B) The role of the sector deprived to promote self-regulation

Just like associations, the private sector promotes the autoreglementation by various means. The companies want that the Net surfers have more confidence in the network in their offering guarantees and sensitizing them with this new mean of communication. The consumers are thus better informed of the practices to be adopted on Internet for surfer in all confidence.

Industry can thus bring an important help to limit circulation of the illegal contents and in particular in the cases of pornography putting in scene children, by effective mechanisms of autoreglementation such as and the establishment codes of conduct of hot lines, profiting from the support of the consumers^588(*).

Companies worked out Charters of confidence as the Vivendi group in France which launches in February 2000, a Charter Internet confidence^589(*). It urges all the companies of the group to follow the latter in order to in particular protect the personal children, data and the intellectual property. At the international level, the Total Business Dialogs one electronic trade (GBDe)^590(*) created in 1998, pushes the companies to develop answers to facilitate the electronic trade. It gathers the largest world companies such as AOL?Time-Warner, Walt Disney Company, IBM, Toshiba, Vivendi, France Telecom... It tries to find the means of regulating best possible Internet network according to various needs' for the private sector and the Net surfers.

The private sector is often at the origin of the new legislations, since it is in general, the first touched by the overflows of the network. Indeed, the Industry of the discs makes many pressures in order to obtain effective regulations to limit the remote loading of music or films without paying only one royalty. These companies are thus generating of right as well as associations.

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.

BIBLIOGRAPHY

COUNT OF THE LEGISLATION

FEDERAL TEXTS

Canada Human Rights Act, 1976-77, C. 33.

Canadian charter of the rights and freedoms, left I the Constitutional Law of 1982 [appendix B of the Law of 1982 on Canada (1982, R.-U., C. 11)].

Code criminal, L.R.C. (1985), C.C-46, MOD. by L.R.C. (1985), c.2 (1st supp.).

Canadian declaration of the rights, L.R.C. (1985), a. III.

Antiterrorist law, S.R.C 2001, c.41.

Law of 2001 modifying the criminal right, L.C. 2002, C. 13 (Bill C-15A).

Canadian law on the rights of the person, L.R.C. (1985), C.H-6.

Law on broadcasting, 1991, c.11 ; L.R.C., C.B-9.01.

Uniform law on the electronic trade, on line on : the Conference for the harmonization of the laws in Canada < http://www.ulcc.ca/fr/us/index.cfm?sec=1&sub=1u1 >.

QUÉBÉCOIS TEXTS

Charter of the rights and freedoms of the person, L.R.Q., c.C-12.

Civil code of Quebec, L.Q. 1991, c.64.

Law concerning the legal framework of information technologies, L.R.Q. 2001, c.32.

Law on Telecommunications, L.Q. 1993, c.38.

TEXTS OF THE OTHER PROVINCES

Electronic Act Transactions, S.B.C. 2001, c.10.

Law of 2000 on the electronic trade, L.O. 2000, C. 17.

EUROPEAN TEXTS

Act of the Council, July 26, 1995, bearing establishment of convention creating European Office of police force (Europol Convention), OJ E.C. n°C 316 of the 27/11/1995.

Charter of the basic rights of the European Union, 2000/C 364/01.

Convention of safeguard of the humans right and of fundamental freedoms, (1955) 213 R.T.N.U. 221.

Decision n°276/1999/EC of the European Parliament and the Council of 25 January 1999 adopting a Community action plan multiannual aiming at promoting a surer use of Internet by the fight against the messages with contents illicit and prejudicial diffused on the world networks, OJ E.C. n°L 33 dated the 6/02/1999 ; in appendix in the book of P. BREESE, legal Guide of the Internet and the electronic trade, Paris, Vuibert, 2000, p. 408.

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 the 20/01/2004.

Council Decision of May 29, 2000 relating to the fight against the pedopornography on Internet, OJ E.C. n°L 138 of the 09/06/2000.

Council Decision of 28 February 2002 instituting Eurojust in order to reinforce the fight against the serious forms of criminality, OJ E.C. n°L 63 of the 06/03/2002.

Directive 2002/58/EC of the European Parliament and the Council of July 12, 2002 concerning the processing the data in personal matter and protection of the life deprived in the sector of the electronic communications (electronic directive private life and communications), OJ E.C. n° L 201 of the 31/07/2002, p.37- 47.

Directive 2000/31/EC of the European Parliament and the Council of June 8, 2000 relating to certain legal aspects of the services of the company of information, and in particular of the electronic trade, in the domestic market («directive on the electronic trade»), OJ C.E n° L 178 of the 17/07/2000, p. 0001- 0016 ; and on line on : < http://europa.eu.int/smartapi/cgi/sga_doc?smartapi!celexapi!prod!CELEXnumdoc&lg=fr&numdoc=32000L0031&model=guichett >.

Directive 2000/43/EC relating to the implementation of the principle of the equal treatment enters the people without reference of race or ethnic origin, OJ E.C. n° L 180 of the 19/07/2000 p. 0022- 0026.

Directive 2000/78/EC of the Council of bearing 27 November 2000 creation of a general framework in favor of the equal treatment de employment work, OJ E.C. n° L 303/16 dated the 2/12/2000 ; on line on : europa < http://europa.eu.int/comm/employment_social/news/2001/jul/directive78ec_fr.pdf > 

Directive n°98?84?CE concerning the legal protection of the services with conditional access and the services of conditional access, November 20, 1998, OJ E.C. n° L 320 of the 28/11/1998 p. 0054- 0057.

Directive n°98?34?CE envisaging a procedure of information in the field of the standards and regulations technical and the rules relating to the services of the company of information, June 22, 1998, OJ E.C. n°L 204 of the 21/07/1998, p.37.

Directive n°97?66?CE concerning the processing the data in personal matter and protection of the life deprived in the sector of telecommunications, December 15, 1997, OJ E.C. n°L 24 of the 30/01/1998, p.1.

Deliver Vert on the protection of the minors and human dignity in the audio-visual services and of information, October 16, 1996, COM (96) 483.

International pact relating to the civil laws and political, (1976) 999 R.T.N.U. 171.

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. 7/10/1998 n°L270, 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 >

Recommendation Rec (2001) 8 of the Committee of the Ministers to the Member States on the self-regulation of the cyber-contents (self-regulation and the protection of the users against the contents illicit or prejudicial diffused on the new services of communications and information), adopted on September 5, 2001 by the Council of Ministers, on line on : The Council of Europe < http://cm.coe.int/ta/rec/2001/f2001r8.htm >

Resolution LMBO (2002) 8 relating to the statute of the European Commission against racism and the intolerance (ECRI) adopted by the Committee of the Ministers on June 13, 2002 at the time of the 799e meeting of Delegated Ministers, on line on : The Council of Europe < http://www.coe.int/T/F/Droits%5Fde%5Fl%27homme/Ecri/1%2DECRI/ECRI_statut.asp#TopOfPage >.

Payment (EC) n° 1035/97 of the Council of bearing 2 June 1997 creation of a European Observatory of the racist and xenophobe phenomena, OJ E.C. n° L 151 of the 10/06/1997 p. 0001- 0007, on line on : europa < http://europa.eu.int/smartapi/cgi/sga_doc?smartapi!celexapi!prod!CELEXnumdoc&lg=fr&numdoc=31997R1035&model=guichett >.

Treaty establishing the European Community of 25 March 1957 as modified by the Treaty of Nice, signed in Nice on February 26, 2001, OJ E.C. n° C 80/1 of the 10/03/2001, on line on : < http://europa.eu.int/eur-lex/fr/treaties/dat/nice_treaty_fr.pdf >.

FRENCH TEXTS

Decree of 31 May 2002 relating to the recognition of the qualification of the people receiving benefits of electronic certification and to the accreditation of the organizations in charge of the evaluation, OJ June 8, 2002, on line on : Electronic and right signature of the proof < http://www.signelec.com/news/1024052364 >

Code communication, Paris, Dalloz, 2001.

French civil code, 101e edition, Paris, Dalloz, 2002.

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

Declaration of the rights of man and of the Citizen of 1789, in line on : Presidency of the Republic < http://www.elysee.fr/instit/text1.htm#finNavSec >

Law on the freedom of the press of July 29, 1881, on line on : Legifrance < http://www.legifrance.gouv.fr/WAspad/RechercheSimpleLegi >.

Law n°78-17 of January 6, 1978 relating to data processing, the files and freedoms, in line on : Légifrance < http://www.legifrance.gouv.fr >

Law n°85-1317 of December 13, 1985 relating to the audio-visual communication, on line on : legifrance < http://www.legifrance.gouv.fr/ >.

Law n° 86-1020 relating to the fight against terrorism, on line on : Legifrance < http://www.legifrance.gouv.fr >.

Law n°90-615 of 13 July 1990 tending to repress any racist act, anti-semite or xenophobe, OJ July 14, 1990 p.8333 ; on line on : Legifrance < http://www.legifrance.gouv.fr/WAspad/RechercheSimpleLegi >

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 >.

Law n° 2000-719 of 1 August 2000 amending Law N 86-1067 of September 30, 1986 relating to the freedom of communication, OJ August 2, 2000, n°177.

Law n° 2001-1062 of November 15, 2001 relating to daily safety, OJ November 16, 2001, n°266 ; on line on : Légifrance < http://www.legifrance.gouv.fr/WAspad/UnTexteDeJorf?numjo=INTX0100032L >

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 >.

Law n°2002-1040 of 6 August 2002 authorizing the ratification of the convention of the United Nations against organized transnational criminality, OJ August 7, 2002, n°183.

Law n° 2003-88 of 3 February 2003 aiming at worsening the sorrows punishing the infringements in racist matter, anti-semite or xenophobe, OJ February 4, 2003, n° 29, p. 2104.

Bill on the electronic communications and the services of audio-visual communication, on line on : The action of the State for the development of the company of information < http://www.internet.gouv.fr/article.php3?id_article=968 >.

Bill n° 3143 on the company of information (LSI), recorded with the Presidency of the French National Assembly on June 14, 2001, on line on : Site of the French National Assembly < http://www.assemblee-nat.fr/projets/pl3143.asp >

Bill n° 528 for confidence in the numerical economy, National Parliament, January 15, 2003, first reading, on line on : site of the French National Assembly < http://www.assemblee-nat.fr/12/projets/pl0528.asp >.

Bill n° 991 for confidence in the numerical economy, modified by the Senate, January 26, 2003, second reading, on line on : site of the French National Assembly < http://www.assemblee-nat.fr/12/dossiers/economie_numerique.asp >.

Bill n° 235 for confidence in the numerical economy, adopted with the modifications by the French National Assembly, second reading, on line on : site of the French National Assembly < http://www.assemblee-nat.fr/12/dossiers/economie_numerique.asp >.

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 >

AMERICAN TEXTS

Child Pornography Prevention Act off 1996 (CPPA).

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/bill_rts.htm >.

DIGITAL Millenium Act Copyright, public Law n°105-304, 112 Stat. 2860 (October 28, 1998), on line on : < http://www.eff.org/IP/DMCA/hr2281_dmca_law_19981020_pl105-304.html >.

AUSTRALIAN TEXTS

Broadcasting Services Amendment (Online Services) Act 1999 n° 90, 1999.

GERMAN TEXTS

Federal Act Establishing the General Conditions for Information and Communication Services- Information and Communicaton Act Services - (Information und Kommunikationsdienste-Gesetz - IuKDG), on line on : < http://www.iid.de/rahmen/iukdgebt.html >

INTERNATIONAL TEXTS

International Convention on the elimination of all the forms of racial discrimination, (1969) 660 R.T.NU. 195 ; entry into force, January 4, 1969, on line on : site of Office of the High Commission of the United Nations to the humans right < http://www.unhchr.ch/french/html/menu3/b/d_icerd_fr.htm >.

International Convention for the repression of the financing of terrorism, December 8, 1999, on line on : France-diplomacy < http://www.france.diplomatie.fr/actual/dossiers/terroris/convention.html >.

Convention on the cybercriminality, CO. n°: 185, Budapest, November 23, 2001, on line on : Site of the Council of Europe < http://conventions.coe.int/Treaty/FR/Cadreprincipal.htm >

Declaration on the elimination of all the forms of intolerance and discrimination based on the religion or the conviction, in line on : site of Office of the High Commission of the United Nations to the humans right < http://193.194.138.190/french/html/menu3/b/d_intole_fr.htm >.

Declaration of the rights of the people belonging to national minorities or ethnic, religious and linguistic, on line on : site of Office of the High Commission of the United Nations to the humans right < http://193.194.138.190/french/html/menu3/b/d_minori_fr.htm >

Declaration of the United Nations on the elimination of all the forms of racial discrimination, on line on : site of Office of the High Commission of the United Nations to the humans right < http://193.194.138.190/french/html/menu3/b/9_fr.htm >.

Declaration on the racial race and prejudices, on line on : site of Office of the High Commission of the United Nations to the humans right < http://193.194.138.190/french/html/menu3/b/d_prejud_fr.htm >.

Declaration on the fundamental principles concerning the contribution of the bodies of information to the reinforcement of peace and international comprehension, with the promotion of the humans right and the fight against racism, apartheid and the incentive with the war, on line on : site of Office of the High Commission of the United Nations to the humans right < http://193.194.138.190/french/html/menu3/b/d_media_fr.htm >.

Universal declaration of the humans right of August 26, 1789, A.G. Res. 217 A (III), Doc. N.U. With/810 (1948).

Standard law of the CNUDCI on the electronic trade and Guides for its incorporation 1996, on line on : Site of the United Nations < http://www.uncitral.org/french/texts/electcom/ml-ecomm-f.htm >

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, CO. n°: 189, Strasbourg, 28.01.2003, on line on : The Council of Europe < http://press.coe.int/cp/2003/048f(2003).htm >

PROFESSIONAL PRACTICES

Code of ethics of the Canadian Association of Internet providers, on line on : < http://www.caip.ca/issueset-fr.htm >.

European code of ethics as regards use of data in personal matter in direct marketing : < http://www.fedma.org/img/db/FEDMACodeFR.pdf >.

Practical and uses of the members of the Association of the suppliers of access, on line on : < http://usages.afa-france.com/ >.

COUNT OF JURISPRUDENCE

EUROPEAN JURISPRUDENCE

Court. Eur. D. h., Lingens C. Austria, 8 juil. 1986.

Court. Eur. D. h., Thoma C. Luxembourg, March 29, 2001.

Court Eur. D. h., Sunday Times (n°1), 26 avr.1979, § 47.

FRENCH JURISPRUDENCE

Conseil IARD CENTERED and CENTERED the Council Life C. Mr Christophe Mr., Mr Christophe Sapet, Chairman of the board of the Infonie company, TGI Puteaux, 28/09/1999, on line on : Juriscom.net < http://www.juriscom.net/txt/jurisfr/cti/resum.htm#axa >.

CA Besancon, 29 janv. 1976, J.C.P. 1977. II. 18640, Delpech NOTE.

CA Paris (14th CH.), February 10, 1999, J.C.P. 1999. E. 953, n°21, obs. Mr. LIVING and C. the STANC.

C.cass. Paris, Nov. 13, 1973, Gas. Stake. 1974. 1. somm. 114.

Case. crim., Feb. 3, 2003 : N°2004-022448 Juris-dated.

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 >

Cons.const., July 27, 2000, Decision n° 2000-433 cd., Law amending Law N 86-1067 of September 30, 1986 relating to the freedom of communication.

E.L C. public Ministère, CA Paris, 13th CH., sect.A, 2 avr.2002, Com. Com. électr. 2002. Com. n°111.

Estelle Hallyday C.V.Lacambre CA Paris, ref., February 10, 1999, on line : Lawyer company Dauriac, Pauliat-Defaye, Boucherle < http://www.avocatdpdb.com/juris_internet_100299.htm >

Faurisson C. France, CCPR/C/58/D/550/1993.

I show C. AFA and others, TGI Paris, ord.réf., October 30, 2001, Com. Com. électr. January 2002. n°1, 30, n°8.

Jean-Marie the PEN C. limited liability company Ccmb Kilikopela, Tiscali, Sebastien C., TGI Paris, ord. ref., January 17, 2003, note Luc GRYNBAUM, Com. Com. électr. May 2003. Com. n°50, 31.

Lacoste C. SA Multimania Production and A., TGI Nanterre, December 8, 1999, J.C.P. 2000.II.10279, F.Olivier note and E.Barbry.

Mr. Bertrand D.C. Sté AltaVista Comapny and others, TGI Paris, ord. ref., July 31, 2000, Expertises, 2001, N° 245, p. 79, note GUISTI Jerome and DESGENS-PASANAU.

Mr. G.C. Public Ministère, CA Paris, May 13, 1998, Gas. Stake. 1999.2, somm. p. 440, note Yann BRÉBAN.

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 >.

Mr Timothy K C. Yahoo Inc, TGI Paris, February 26, 2002, on line on : Juriscom.net < http://www.juriscom.net/txt/jurisfr/cti/ >.

Public ministry, UEJF and other C. Jean-Louis C., CA Paris, 11th CH., December 15, 1999.

Multimania C. Lynda Lacoste, CA Versailles, June 8, 2000, on line on : < http://www.gitton.net/jurisprudence/r2000-06-08.htm >.

Pagotto C. Gallopin, Lacambre and others, TGI Paris, March 24, 2000, on line on : Juris-sorter < http://www.juris-classeur.com/ >.

SA Father-noel.fr C. Mr F.M., Miss E.C and limited liability company Deviating Network, TGI Lyon, May 28, 2002, Com. Com. électr. January 2003. appendix, p.21.

SA Ciriel C. SA Free, TGI Paris, ord.réf., February 6, 2001, Com. Com. électr. May 2001. Com. n°50, obs. CH. THE STANC.

S. Perathoner, co. Pmbe, co. Midday Music, Trade union of the Data-processing Producers of Sound records, co. of the Authors and Type-setters and Editors of Musics C.J. Paumier, co. Free and others, TGI Paris, 3rd CH., 1st sect., May 23, 2001, Com. Com. électr. Com. Nov. 2001. n°112, 21.

Sylvain H.C. public Ministère, CA Douai, 4th CH., March 21, 2002, Com. Com. électr. June 2003. n°6, p.38.

3 Swiss, SNC 3SH, Helline, Redcats, Redoute, the Which source C/Axinet Communication and Consorts Guiffault, TGI Nanterre, ord.réf., January 31, 2000, on line on : legalis.net < http://www.legalis.net/cgi-iddn/french/affiche-jnet.cgi?droite=internet_illicites.htm >.

TGI Paris, ref. Oct. 30, 2001, Com. Com. électr. 2002, Com. n°8, CH note. STANC.

TGI Paris, 1st CH., 1st sect., Dec. 12, 2001, Com. Com. électr. June 2002. Com. n°92.

TGI Paris, ref., February 18, 2002, Com. Com. électr. July-August 2002. Com. n°102, obs. L. GRYNBAUM.

TGI Paris 17th CH., 26 févr. 2002 : Com. Com. électr.2002 Com. n°77, note A. LEPAGE.

TGI Paris, 17th CH., March 26, 2002, Com. Com. électr. May 2002. Com. n°78.

TGI Paris, ord. ref., January 17, 2003, Com. Com. électr. 2003. Com. n°50.

TGI Toulouse, ref., June 5, 2002, Com. Com. électr. 2002. Com. n°118.

T. corr. Mans, February 16, 1998, J.C.P. 1999. II. 10011, note J. FRAYSSINET.

T.corr.Paris, 17th CH., 11 févr.2003, Com. Com. électr. 2003. act. n°61.

UEJF and Licra C. Yahoo ! Inc. and Yahoo France, TGI Paris, ref., May 22, 2000, Com. Com. électr.2000 Com. n°92, J-Chr note. GALLOUX or on line : Review of the right of information technologies < http://www.juriscom.net/txt/jurisfr/cti/tgiparis20000522.htm > ; or Com. Com. électr.2000 Com. n°92, J-Chr note. GALLOUX.

UEJF C. Calvacom and others, TGI Paris, ord.réf., June 12, 1996.

V. Lacambre E.C. Lefèbure-Hallyday, TGI Paris, ord.réf., June 9, 1998.

CANADIAN JURISPRUDENCE

1. Supreme court

Aubry v. Editions Vice versa, [1998] 1 S.C.R. 591.

Canada (Commission of the rights of the person) C. Canadian Liberty Net, [1998] 1 R.C.S. 626.

Edmonton Newspaper C. Alberta (Attorney General), [1989] 2 R.C.S. 1326.

Ford C.P.G. of Quebec, [1985] C.S. 147 or J.E. 85-59.

Ford C. Quebec (Attorney General), [1988] 2 R.C.S. 712.

Godbout v. Longueuil (City), [1997] 3 S.C.R. 844.

Hill v. Church off Scientology off Toronto, [1995] 2 S.C.R. 1130.

Irwin Toy Ltd. C. Quebec (Attorney General), [1989] 1 R.C.S. 927.

R.C. Andrews, [1990] R.C.S. 870.

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

R.C. Goldman [1980] R.C.S. 976.

R. v. Jorgensen, [1995] 4 S.C.R. 55.

R. v. Keegstra, [1990] 3 S.C.R. 697.

R. v. Oakes, [1986] 1 R.C.S. 103.

R. v. Seedling, [1993] 3 S.C.R. 281.

R.C. Sharpe, [2001] 1 R.C.S. 45.

R.C. Tremblay, [1993] 2 R.C.S. 932.

R.C. Zundel, [1992] 2 R.C.S. 731.

Ross school C. Conseil of the district n°15, [1996] 1 R.C.S. 826, 865.

SDGMR C. Dolphin Delivery Ltd., [1986] 2 R.C.S. 573.

Switzman C. Elbling, (1957) R.C.S. 285, 306.

Towne Cinema Ltd Theaters. C. The Queen, [1985] 1 R.C.S. 494. (J.Dickson).

2. Federal court

Canada (Commission of the rights of the person) C. Canadian Liberty Net, [1992] 3 c.f. 155.

McAleer C. Canada (Commission of the rights of the person), [1996] 2 c.f. 345.

R.C. Butler [1992] 11 C.R. 4th 137.

Re Tariff 22, Internet, SOCAN, [1999] 1 C.P.R. (4th) 417 (Board Copyright).

Society off Composers, Authors and Music Publishers off Canada (SOCAN) v. Canadian Assn. off Internet Providers, [2002] F.C.J. No 691 (EDF. Ct. A.).

Zundel v. Canada (Attorney General), 67 C.R.R. (2D) 54 (F.C.T.D. 1999).

PROVINCIAL JURISPRUDENCE

1. Manitoba

R. v. Lowes, [1997] Mr. J.N°549

2. Ontario

Irwin Toy Ltd. v. Doe, [2000] O.J. 3318 (Sup. Ct.).

Philip Corp Services. v. John Doe, (1998) Short spins n° 4582/98 (Have. Ct. (Gen. Div.)).

R. v. Pecciarich, [1995] 22 O.R. (3D) 748 (Sup. Ct. (Gen. Div. )).

3. British Columbia

Chastain C. British Columbia Hydro & Power Authority, [1973] 2 W.W.R. 481.

Reform Party Off Canada v. Western Union Insurance Co., [1990] B.C.J. No 2794 (Sup. Ct.).

R. v. Clark, Court prov. C. - B.

R. v. Hurtubise, [1997] B.C.J. N°40 (A.C.)

R. v. Sharpe, [1999] B.C.J. N°1555

4. Quebec

Furrier C. the Queen, [1986] R.J.Q. 595.

R.C. Gauthier, [1999] R.J.Q. 2103 ; J.E. 99-1521.

R.C. Lavoie [2000] J.Q No 468 ; Q.J. (Quicklaw) n°468, (Court of Quebec).

R.C. Tardiff, C.Q. Joliette, J.E. 99-291, AJDQ (1999) n°2219.

AMERICAN JURISPRUDENCE

ACLU. v. Reno, 929 F. Supp. 824 (E.D. Pa. 1996).

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

Chaplinsky v. New Hampshire, 315 US 568 (1942).

Cubby, Inc. v. CompuServe, Inc., 776 F. Supp. 135 (S.D.N.Y. 1991).

Jacobellis v. Ohio (1964) 378US184, 197.

Miller v. California, 413 U.S. 15.

R. Grace Work Card Neely and eBay, Superior runs off the State off California for the county off Los Angeles, 2 avr. 2003, Com. Com. électr. 2003. Com. n°61, note Luc GRYNBAUM.

Religious Technology Center v. Netcom Online Communication Services Inc. (907 F. Supp. 1361 (ND Cal.1995)).

Reno v. ACLU., 512 US 844 (1997), 117 S. Ct 2329.

Roth v. United States, 543 US 476 (1957).

Shea v. Reno, 930 F. Supp. 916 (SDNY).

Stratton Oakmont, Inc. v. Prodigy Services Co., 23 Med L.R. 1794 (N.Y. Sup. Ct. 1995) or [1995] New York (Quicklaw) Index n°31063/94 (Sup. Ct.).

Supreme Court off Virginia, America Online, Inc. v. Nam Tai Electronics Inc., nov.01, 2002: on line on: < http://www.valawyersweekly.com >

Yahoo! Inc. v. The league Counters racism and the Anti-semitism, 169 F. Supp. 2D 1181 (N.D. Cal. 2001); US SHORT DISTRICT, District off California, San Jose Division, November 7, 2001, on line on : < http://www.foruminternet.org/telechargement/documents/dc-calif20011107.pdf > or Com. Com. électr. 2002, Com. n°9.

COUNT OF THE DOCTRINES

MONOGRAPHS AND COLLECTIONS

BAILLET, F., Internet : right of the cybercommerce : The practical guide and legal 2001, Issy-les-Mulineaux, Edition Strategies, 2000.

BENSOUSSAN, Alain and BREBAN, Yann, stop-tendencies of the Internet, Alain Bensoussan-Lawyers, Paris, Hermes Science Publications, 2000.

BISMUTH, Yves, « Censurnet or Internet and censure », in Work of A.F.D.I.T under direction X. LINANT of BELLEFONDS (to dir.), Internet seized by the Right, France, Éditions of Park, 1997, p.169.

BOCHURBERG, Lionel, Internet and electronic trade : Web site, contracts, responsibility, dispute, 2nd edition, Paris, DELMAS-DALLOZ, 2001.

BREESE, P., legal Guide of the Internet and the electronic trade, Paris, Vuibert, 2000.

BRUNELLE, Christian, « The applicability of the Charters of the rights », in Collection of right 2001-2002, School of the Bar of Quebec, vol.7, Right administrative public and, Cowansville, Editions Yvon Blais, 2001, p.33.

COLLARD, Nathalie and Pascale NAVARRO, Interdict with the women : The feminism and censure of the pornography, Quebec, Boreal, 1996.

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

FÉRAL-SCHUHL, Christiane, Cyberdroit : right the Internet proof, 2nd ED., Paris, Dunod Dalloz, 2000.

FÉRAL-SCHUHL, Christiane, CyberDroit : right the Internet proof, 3rd ED., Paris, Dalloz, 2002.

FUENTES-CAMACHO, Teresa (to dir.), international dimensions of the right of the cyberspace, Collection Right of the cyberspace, Paris, Edition UNESCO - Économica, 2000.

GAUTRAIS, Vincent (to dir.), Right of the electronic trade, Montreal, ED. THEMIS, 2002.

GAUTRAIS, Vincent and PARISIAN Serge, Right of the electronic trade : international documents, Cowansville, ED. Yvon Blais Inc., 2002.

GEIST, Michael, Internet Law in Canada, third Edition, Ontario, Captus Close Inc., 2002.

GUILLEMARD, Sylvette and Maxime St-HILAIRE, 1988-2001 twenty years of great judgments of the supreme Court of Canada : 45 decisions chosen, presented and with accompanying notes, Montreal, Wilson and Lafleur, 2002.

GRAINGER, Gareth, « Freedom of expression and regulation of information in the cyberspace : prospects and principles of an international co-operation in this field », in Teresa FUENTES-CAMACHO (to dir.), international dimensions of the right of the cyberspace, Collection of the right of the cyberspace, Paris, Edition UNESCO- Économica, 2000, p.89.

HANDA, Sunny, Claude MARSEILLES and Martin SHEEHAN, E-trade legislation and materials in Canada : Laws on the electronic trade in Canada and documents related, Ontario, Butterworths, 2002.

HULTMARK, Christina, « To develop legal systems and a good morality for the Internet », in Teresa FUENTES-CAMACHO (to dir.), international dimensions of the right of the cyberspace, Paris, Edition UNESCO, collection Right of the cyberspace, 2000, p.271.

LAPOINTE, Pascal, Utopie.net : Reality Internet after the dream, Quebec, MultiMondes Editions, 2002.

LIMORE, Yagil, Terrorists and Internet : The cyberwar, Montreal, Editions Hyphen, 2002.

LINANT of BELLEFONDS, Xavier (to dir.), Internet seized by the right : work of A.F.D.I.T, Paris, Éditions of Park, 1997.

MARCELLIN Sabine and Lionel COSTES (to dir.), Lamy right Guide of data processing and the networks : Solutions and applications - Practical contractual, Paris, ED. Lamy, 2002.

MARTIN, Daniel and Frederic-Paul MARTIN, Cybercrime : threats, vulnerabilities and responses, Paris, university Presses of France, 2001.

MORANGE, Jean, freedom of expression, coll Which do know I? , Paris, PUF, 1993.

OUELLET, Caroline, Who makes the law on Internet : Censure or freedom, rights and responsibilities, Canada, the presses of the University Laval, 1998.

OUIMET, Andre, « 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.

PANSIER, Frederique-Jerome and Emmanuel JEZ, criminality on Internet, Paris, PUF, coll Which I know ? , 2000.

PANSIER, Frederique-Jerome and Emmanuel JEZ, criminality on Internet, 2nd edition, Paris, PUF, coll Which I know ? , 2001.

PAUL, Christian, Of the right and freedoms on Internet, Report/ratio with the Prime Minister, Collection of the official reports/ratios, Paris, French documentation, 2001.

PAYETTE Josée and A., « Extracontractuelle civil liability », in Collection of right 2002-2003, School Bar of Quebec, vol.4, Responsibility, Cowansville, Editions Yvon Blais, 2002, p.1, on page 24-23.

PIETTE-COUDOL, Thierry and André BERTRAND, Internet and the law, Paris, Dalloz, 1997.

PIETTE-COUDOL, Thierry and André BERTRAND, Internet and the law, 1ère edition, Paris, PUF, 1999.

SANTIAGO CAVANILLAS MUGICA and A., electronic Trade : the time of the certainty, Books of the CRID n°17, Brussels, Bruylant, 2000.

SÉDALLIAN, Valerie, Right of the Internet : Regulation, Responsibility, Contracts, Cachan, Editions Net Close, Collection AUI, 1997.

THEMENS, Francois, Internet and the civil liability, Cowansville, Editions Yvon Blais, 1998.

THÉRY, Jean-François, to finish of them good once for all with the censure, Paris, the editions of the Stag, 1990.

TRUDEL, Pierre, « Lex Electronica », in Charles-Albert MORAND (to dir.), right seized by universalization, Brussels, Bruylant Editions, collection International law, 2001, pp. 221-268.

TRUDEL, Pierre, « The responsibility for the actors electronic commercial », in Vincent GAUTRAIS (to dir.), Right of the electronic trade, Montreal, ED. THEMIS, 2002, p. 607-649.

TRUDEL, Pierre, F.ABRAN, K.BENYEKHLEF and S. HEIN, Right of the cyberspace, Montreal, ED. THEMIS, 1997.

VERBIEST, Thibault and Etienne WÉRY, right of the Internet and the company of information: European rights, Belgian and French, Brussels, ED. Larcier, 2001.

LIVING, Right Michel (to dir.), Lamy of data processing and networks : data processing, multi-media, networks, Internet, Paris, Lamy, 2003.

LIVING, Michel and C. the STANC (to dir.), Lamy Right of data processing and networks, Paris, Lamy, 2002.

DICTIONARIES AND ENCYCLOPEDIAS

Legal GUILLIEN, R. and Jean VINCENT, Terms, lexicon, 10th edition, Paris, Dalloz, 1995.

ROBERT, Paul, the Large Robert of the French language : alphabetical and analogical dictionary of the French language, Paris, Edition Dictionary the Robert, 2001.

ROBERT, Paul, the new Petit Robert : alphabetical and analogical dictionary of the French language, text altered and amplified under the direction of Josette REY-DEBOYE and Alain REY, Nouv ED duPetitRobert Paris DictionnairesLeRobert 1995, p 1423.

REPORTS/RATIOS AND GOVERNMENTAL PUBLICATIONS

BAR OF QUEBEC, Memory on the bill C-15A : Law modifying the Criminal Code and other laws (2001), Mars 2002, on line on : < http://www.barreau.qc.ca/opinions/memoires/2002/C15a.pdf >

CNC, Opinion and Recommendations on the offer of access to the Internet, February 18, 1997 ; on line on : French government < http://www.telecom.gouv.fr/internet/texteofficiel2.htm >

CANADIAN COMMISSION OF THE RIGHTS OF THE PERSON, Internet site of heinous propaganda of Ernst Zundel is illegal, declared the court, Ottawa, January 18, 2002, on line on : < http://www.chrc-ccdp.ca/news-comm/2002/NewsComm180102.asp?&&l=e&l=f >.

COMMISSION OF THE EUROPEAN COMMUNITIES, Action plan aiming at promoting a surer use of Internet, November 26, 1997, on line on : europa < http://europa.eu.int/information_society/programmes/iap/docs/pdf/call/1999/filterfr1.pdf >.

EUROPEAN COMMISSION, Evaluation of the European Observatory of the racist and xenophobe phenomena, final Report/ratio, May 2002, on line on : europa < http://europa.eu.int/comm/employment_social/fundamental_rights/pdf/origin/eumc_eval2002_fr.pdf >.

ADVISORY NATIONAL COMMISSION OF THE HUMANS RIGHT, the fight against racism and xenophobia, management Report, 2002, on line on : French Documentation < http://www.ladocumentationfrancaise.fr/BRP/034000129/0000.pdf >.

COMMISSION IN THE EUROPEAN PARLIAMENT, First report/ratio on the application of directive 2000/31/EC of the European Parliament and the Council of June 8, 2000 relating to certain legal aspects of the services of the company of information, and in particular of the electronic trade, in the domestic market (« Directive on the electronic trade »), November 21, 2003, COM (2003) 702 final, Commission of the European Communities, on line on : europa < http://europa.eu.int/eur-lex/fr/com/rpt/2003/com2003_0702fr01.pdf >.

COMMUNICATION OF THE EUROPEAN COMMISSION, Contents illegal and prejudicial on Internet, October 16, 1996, COM (96) 487.

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.

CENTER FOR THE EQUAL OPPORTUNITY AND THE FIGHT AGAINST RACISM, Annual report of 2002, Belgium, on line on : < http://www.antiracisme.be/fr/cadre_fr.htm >.

CONFERENCE FOR THE HARMONIZATION OF THE LAWS IN CANADA, Comments of the uniform Law on the electronic trade, 1999, on line on : < http://www.law.ualberta.ca/alri/ulc/findex.htm > (site visited on September 27, 2003).

COUNCIL OF STATE, Internet and networks numerical, Paris, French documentation, 1998, on line on : French government < http://www.internet.gouv.fr/francais/textesref/rapce98/accueil.htm >.

THE COUNCIL OF CANADIAN BROADCASTING AND TELECOMMUNICATIONS, public Opinion of the CRTC 1999-84, Ottawa, May 17, 1999, on line on : CRTC < http://www.crtc.gc.ca/archive/frn/Notices/1999/PB99-84.htm >.

THE COUNCIL OF BROADCASTING AND CANADIAN TELECOMMUNICATIONS, the CRTC will not regulate Internet, Communiqué of May 17, 1999, Ottawa-Hull, on line on : CRTC < http://www.crtc.gc.ca/FRN/NEWS/RELEASES/1999/R990517.htm >.

THE HIGHER COUNCIL OF AUDIO-VISUAL, Opinion on the bill on the company of information, May 9, 2001, on line on : Right and New Technologies < http://www.droit-technologie.org/legislations/avis_CSA_LSI_090501.pdf >.

THE COUNCIL OF THE EUROPEAN UNION, Annual report of the European Union on the humans right, Secretariat-general, October 21, 2002, on line on : europa < http://europa.eu.int/comm/external_relations/human_rights/doc/report02_fr.pdf >

SANTIS, Heather, To fight hatred on the Internet : International comparative study of the political approaches : Seek and analyzes strategic, Programme of the multiculturalism, Canada, Ministère of the Canadian Inheritance, January 1998.

DIONIS OF the STAY, Jean, Report/ratio N° 612 fact in the name of the Commission of the economic affairs, the environment and the territory on the bill (n° 528) for confidence in the numerical economy, National Parliament, Twelfth legislature, February 12, 2003, on line on : National Parliament < http://www.assemblee-nat.fr/12/rapports/r0612.asp >.

ENVIRONICS RESEARCH GROUP, Canadian Young people in a connected world : the prospect for the pupils, October 2001, on line on : Network education-media < http://www.media-awareness.ca >.

EUMC, Activities off the European Monitoring Centers one Racism and Xenophobia, Annual report : Annual Carryforward 2002, on line on : < http://www.eumc.eu.int/eumc/index.php >.

FALQUE-PIERROTIN, Isabelle, Internet : legal stakes, 1996, on line on : French Documentation < http://www.ladocumentationfrancaise.fr/brp/notices/974057500.shtml >.

GOVERNMENT, Plane RE/SO 2007, on line on : The action of the State for the development of the company of information < http://www.internet.gouv.fr/rubrique.php3?id_rubrique=61 >.

GOVERNMENT OF QUEBEC, Comment of the Law concerning the legal framework of information technologies, on line on : highway of information < http://www.autoroute.gouv.qc.ca/loi_en_ligne/index.html >.

HUGOT, Jean-Paul, n°154 Report/ratio on Bill amending the law n° 86-1067 of September 30, 1986 relating to the freedom of communication, 1999-2000, on line on : site of the French Senate < http://www.senat.fr/rap/l99-154/l99-154.html >.

HUGOT, Jean-Paul, 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 >.

STATISTICAL INSTITUTE Of UNESCO, To measure the state and the evolution of the company of information and the knowledge : a challenge for the statistics, world Summit on the company of information (SMSI), Montreal, 2003, on line on : site of UNESCO < http://www.uis.unesco.org/ev_fr.php?ID=5504_201&ID2=DO_TOPIC >.

JOYANDET, Alain, Pierre HEDGEHOG and Alex TÜRK, the entry in the company of information, common Mission of information on the entry in the company of information, Information paper 436 of the Senate, Paris, 1996/1997, on line on : Site of the French Senate < http://www.senat.fr/rap/r96-436/r96-436_toc.html >.

KNOBEL, Marc, European Forum on the cyber-contents illegal and prejudicial : self-regulation, the protection of the users and their aptitude to use the media, Strasbourg, November 28, 2001, on line on : site of the Council of Europe < http://www.humanrights.coe.int/media/cyberforum/rep-knobel(f).rtf >.

LALANDE, Martin, the Internet, a true challenge for France, April 30, 1997, 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 HEARTH OF COSTIL, Guillaume and Al, Synthesis of the round Table : « Project LEN : advanced and uncertainties », June 25, 2003, on line on : < http://www.adij.asso.fr/V3/fr/len.htm >.

LE ROUX, Bruno, Information paper n°3662 on the implementation of the law n° 2001-1062 of November 15, 2001 relating to daily safety, February 22, 2002, on line on : Site of the French National Assembly < http://www.assemblee-nat.fr/rap-info/i3662.asp#P121_14130 >.

LORENTZ, Francis, electronic Trade: a news gives for the consumers, the companies, the citizens and the authorities, January 1998, on line on : Ministry for the economy, finances and industry < http://www.telecom.gouv.fr/internet/texteofficiel2.htm >.

PAUL, Christian, Of the right and freedoms on Internet, Report/ratio with the Prime Minister, Collection of the official reports/ratios, Paris, French Documentation, 2001.

RACICOT Michel and Al, Study of the comparative responsability to the contents circulating on Internet, 1997-03-12, Canada Industry, on line on : < http://strategis.ic.gc.ca >.

RAFFARIN, Jean-Pierre, Speech of the Prime Minister in front of Electronic Business Group- Presentation of the plan RE/SO 2007, November 12, 2002, on line on : site of French the Prime Minister < http://www.premier-ministre.gouv.fr/fr/p.cfm?ref=36713&d=1 >.

STATISTICAL INSTITUTE REPORT/RATIO Of UNESCO, To measure the state and the evolution of the company of information and the knowledge : a challenge for the statistics, world Summit on the company of information (SMSI), Montreal, 2003, on line on : site of UNESCO < http://www.uis.unesco.org/ev_fr.php?ID=5504_201&ID2=DO_TOPIC >.

RECOMMENDATION OF THE COUNCIL OF OECD, hot Lines of OECD governing the safety of the systems and networks of information : Towards a culture of safety, July 25, 2002, on line on : < http://www.oecd.org/pdf/M00034000/M00034292.pdf >.

RECOMMENDATION OF THE FORUM OF THE RIGHTS ON THE INTERNET, Which responsibility for the creators for hyperlinks towards the illicit contents ? , October 23, 2003, on line on : The Forum of the rights of the Internet < http://www.foruminternet.org/telechargement/documents/reco-resphyli-20031023.pdf >.

RECOMMENDATION OF THE FORUM OF THE RIGHTS ON THE INTERNET, Which responsibility for the organizers for forums for discussion on the Web ? , July 8, 2003, on line on : The Forum of the rights of the Internet < http://www.foruminternet.org/telechargement/documents/reco-forums-20030708.htm >.

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), February 11, 2004, on line on : French Documentation < http://lesrapports.ladocumentationfrancaise.fr/BRP/044000066/0000.pdf >.

REPORTERS WITHOUT BORDERS, Internet under monitoring : Obstacles with the information flow on the network, 2003, on line on : RFS < http://www.rsf.fr/IMG/pdf/doc-2233.pdf >.

SERVICECANADIENDURENSEIGNEMENTDESECURITY, N°2000 Ratio/01 Tendencies of terrorism, Ottawa, coll Prospects, 2000.

SERVICECANADIENDURENSEIGNEMENTDESECURITY, n°2000 Ratio/04 international Terrorism : threaten for Canada, Ottawa, coll Prospects, 2000.

CANADIAN STRATEGY FOR THE SEDENTARY, careful USE AND PERSON IN CHARGE FOR INTERNET, the illegal and offensive contents diffused in Internet, Ottawa, Government of Canada, 2000, on line on : < http://www.brancher.gc.ca/cyberaverti >.

TABAROT, Michele, n°608 Report/ratio on the bill (n°528) for confidence in the numerical economy, National Parliament, February 11, 2003, on line on : site of the French National Assembly < http://www.assemblee-nat.fr/12/rapports/r0608.asp >.

UNESCO, the SMSI close the first phase of its work by the adoption of a statement of principles and an action plan, Press release PI?G?1540, December 12, 2003, on line on : < http://www.un.org/News/fr-press/docs/2003/PIG1540.doc.htm >.

EUROPEAN UNION AGAINST RACISM, Report/ratio of February the 24, and 25 2000 on the European Conference on the fight against racism at the European level, on line on : europa < http://europa.eu.int/comm/employment_social/fundamental_rights/pdf/pubdocs/confreport2000_fr.pdf >.

CONFERENCES AND SEMINARS

CUSTOS, Domenica, freedom of expression on Internet in the United States and in France, University Paris-I the Pantheon Sorbonne, International Conference the Internet and the Right : Right European and compared Internet, September 2000, on line on : < http://droit-internet-2000.univ-paris1.fr/dossier7/Dominique-Custos.doc >.

TRUDEL, Pierre, right of Internet to Canada, international Conference on the Internet and the right : right European and compared Internet, Paris, 25- September 26, 2000, on line on : < http://droit-internet-2000.univ-paris1.fr/dossier4/Pierre-Trudel.doc >.

TRUDEL, Pierre, the responsibility on Internet, Right Seminar & Fabric, Bamako, May 27, 2002.

MEMORIES AND THESES

HAMON, Arnaud, an approach of the freedom of expression on Internet, Memory of Human right DEA and freedoms public, Paris, University of Paris X Nanterre, 2000, on line on : Juriscom.net < http://www.juriscom.net/uni/mem/14/presentation.htm >.

IMBLEAU, Martin, negation of Shoah- Freedom of expression or racist crime ? Negationnism of Shoah in international law and compared, Paris, Harmattan, 2003, 442 pages.

JOUGLEUX, Philippe, criminality in the cyberspace, Memory of Right DEA of the Media, Aix-Marseilles, Faculty of Law and political science, University of right, saving and sciences in Aix-Marseilles, 1999.

ELECTRONIC ARTICLES, OF REVIEW, NEWSPAPERS AND PERIODICALS

ALBERGANTI Michel and Stephan FOUCART, « Internet delivered to the censure », The World, April 8, 2003.

ASSOCIATION ACTION INNOCENCE, International Convention counters the cybercriminality, Dossiers legal, Archives, on line on : < http://www.actioninnocence.org/page.asp?p=433 >.

ASSOCIATION FOOD the NET, the suppliers of access and shelterers will be judges of the contents of the Internet, November 13, 2002, on line on : News Food the Net < http://www.vivrele.net/node/900.html >.

Association FOOD THE NET, Vivre the Net is opposed firmly to any general competence with the SCA to regulate Internet, Press release, 22/01/2003, on line on : < http://www.vivrele.net/node/938.html >.

ASSOCIATION FOOD THE NET, round Table around the bill for confidence in the Numerical Economy, March 18, 2003, on line on : To live the Net < http://www.vivrele.net/node/961.html >.

ASSOCIATION FOOD THE NET, LEN: the SCA does not want any! , March 20, 2003, on line on : To live the Net < http://www.vivrele.net/node/964.html >.

AUMUELLER, Francine, «Haste propaganda law and Internet-based hastens», (Oct. 2000) 44 Crim. L.Q. 92-107.

« Opinion of the Commission of the protection of the private life n°44/2001 of November 12, 2001 », (June 2002) 12 Ubiquity, Brussels, 103-109.

BALASSOUPRAMANIANE, Indragandhi, « Law concerning the legal framework of information technologies : a different approach », (2001) 33 J.duB n°21.

BALASSOUPRAMANIANE, Indragandhi, « Convention on the cybercriminality », (2001) 33 J.du B. n°21.

BALASSOUPRAMANIANE, Indragandhi, « A different approach », (2001) 33 J.duB n°21.

BALASSOUPRAMANIANE, Indra, « The virtual pedophilia », (2002) 34 J.duB n°15, 14.

BALASSOUPRAMANIANE, Indra, « The responsibility for the shelterers », (2000) 32 J.duB n°10, June 1, 2000, on line on : The Newspaper of the Bar < http://www.barreau.qc.ca/journal/frameset.asp?article=/journal/vol32/no10/surlenet.html >.

BARBRY, Eric, end of anonymity on Internet : The law relating to daily safety pointed out the general principle of anonymisation. But reality is quite different, June 11, 2002, on line on : the Newspaper of the Net < http://www.journaldunet.com/juridique/juridique020611.shtml >.

BARBRY, Eric, the bill relating to the numerical economy screened, January 14, 2003, on line on : The Newspaper of the Net < http://www.journaldunet.com/juridique/juridique030114_1.shtml >.

BATTY, David, Police force action against inadequate Net paedophiles «completely», February 10, 2004, on line on: Guardian Unlimited < http://society.guardian.co.uk/children/story/0,1074,1144895,00.html >.

BLOCHE, P., Responsibility for the shelterers, amendment to the law of August 1, 2000, on line on : < http://www.patrickbloche.org/national/internet/responsabilites.html#top >.

BRUNNER, Jeff, «Canada' S uses off criminal and human rights legislation to control hastens propaganda», (1999) 26 Man. L.J. 299-317.

CAHEN, Murielle, the civil liability for the suppliers of access, on line on : < http://www.declic.net/francais/savoir/dossier/fourniss.htm >.

CAHEN, Murielle, the responsibility for the tools of research, November 29, 2002, on line on : < http://www.clic-droit.com/web/editorial/dossier.php?dossier_id=26 >.

CHERRIÈRE, Benjamin, hotlines of the FAI to the test, the Micro-computer, March 24, 2004, on line on : 01net.com < http://www.01net.com/article/236767.html >.

CASSIUS OF LINVAL, Robert, « Censure : when you hold us », (1999) 30 J.du B. n°21, on line on : The Newspaper of the Bar < http://www.barreau.qc.ca/journal/frameset.asp?article=/journal/vol31/no21/surlenet.html >.

CHASSIGNEUX, Cynthia, « Protection of the minors and freedom of expression : the cancellation of the Communication Decency Act », D.I.T 97/4, Re-examined Quarterly, p.72.

COSTES, Lionel, the conference of G8 on safety and the confidence of the cyberespaces : a first dialog, (June 2000) right N°126-C Lamy of data processing and networks : Bulletins of topicality, edition 2000, p.1-5.

   CROUZILLACQ, Philippe, the SCA he will control Internet ? , 26/02/2003, on line on : 01net. < http://www.01net.com/article/202519.html >.

Dispatch Editions of the Juris-Sorter of January 27 and December 11, 2003, in line on : site Juris-Sorter < http://www.juris-classeur.com >.

DERVAUX, Janice and Thibault VERBIEST, the European Commission propose to legislate on the cybercriminality, May 6, 2002, on line on : < http://www.droit-technologie.org/1_2.asp?actu_id=576 >.

DERVAUX, Janice, First opinion of the observatory of the rights of the Internet : the protection of the minors on the Internet, March 10, 2003, on line on : Right and New Technologies < http://www.droit-technologie.org/1_2.asp ? actu_id=725>.

DERVAUX Janice and Thibault VERBIEST, the ASP develops : review of the obligations of the person receiving benefits, March 2003, on line on : Right and New technologies < http://www.droit-technologie.org/1_2_1.asp?actu_id=723 >.

DESGENS-PASANAU, Guillaume, In 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 >.

Detenido a menor por to difundir pornografía infantil in Internet, Noticias, 08-09-02, on line on: delitosinformaticos.com < http://delitosinformaticos.com/noticias/103150194256030.shtml >.

DEVILLARD, Arnaud, world Internet chahute the law on the numerical economy, February 19, 2003, on line on : 01net.com < http://www.01net.com/article/201958.html >.

   DEVILLARD, Arnaud and Guillaume DELEURENCE, Law of the Internet : what will change, 09/01/2004, on line on : 01net.com < http://www.01net.com/article/227943.html >.

DOCQUIR, Pierre-François, Control of the contents on Internet and freedom of expression within the meaning of the European Convention of the humans right, May 2002, on line on : Right and New technologies < http://www.droit-technologie.org >.

DUMONT, Estelle, Responsibility for the shelterers : the polemic is revived, January 17, 2003, on line on : < http://www.zdnet.fr/actualites/internet/0,39020774,2128916,00.htm >.

DUMONT, Estelle, Supervision of the SCA on Internet : cultural lobbies stronger than Nicole Fountain, March 6, 2003, on line on : < http://www.zdnet.fr/actualites/internet/0,39020774,2131532,00.htm >.

DUMOUT, Estelle, Responsibility for the shelterers: Free for a long time anticipates the law, January 16, 2004, on line on : ZDNet France < http://www.zdnet.fr/actualites/internet/0,39020774,39137258,00.htm >

ELECTRONIC FRONTIERS AUSTRALIA RELEASE MEDIA, Censorship laws contribute to youth accesses to violent one pornography, 3 Mars 2003, on line on: < http://www.efa.org.au/Publish/PR030303.html >

ELIE, Michel, « With the sources of the Net », The Television-Radio-Multi-media- World (February 2-3, 1997).

FAUCHOUX, Vincent, French FAI vis-a-vis the illicit contents out of France, August 2001, on line on : The Newspaper of the Net < http://www.journaldunet.com/juridique/juridique010828.shtml >.

FITZSIMMONS, Hamish, Proposals to stop Internet porn' S reach, AM, Radio operator National, 4 Mar 2003, on line on: < http://www.abc.net.au/am/s797700.htm >.

Five arrested in Internet child porn raids At dawn, 10th september 2002, on line on: this is local london < http://www.thisislocallondon.co.uk/news/headlines/display.var.623747.Headlines.0.html >.

MANAGEMENT OF the SPECTRUM AND TELECOMMUNICATIONS, software of filtering, Canada Industry, 29/04/2002, enligne on : < http://strategis.ic.gc.ca/SSGF/sf05306f.html >.

GRYNBAUM, Luc, « The Directive « trade electronic » or worrying it return of legal individualism », Com. Com. électr. 2001. n°7-8.

GRYNBAUM, Luc, « French law v/American Constitution », Com. Com. électr. January 2002. Com. n°9, 32-34.

GRYNBAUM, Luc, « The United States : immunity for eBay, organizer of bidding, having accommodated defamatory remarks », Com. Com. électr. June 2003. Com. n°61.

GUERNALEC, Carole, contents illicit on Internet : prevention, responsibility, repression, Paris, January 2002, on line on : < http://www.cpu.fr/dossier/webuniversites/internet_responsabilite_exposeV2.pdf >.

HAAS, G.et O.TISSOT, « The new mode of responsibility for the shelterers instituted by the law n°2000-719 of 1 August 2000 amending the law n°86-1067 of September 30, 1986 relating to the freedom of communication », Com. Com. électr. March 2001. n°29, 24-25.

JAN, Pascal, « State of need against State of law (in connection with the law on daily safety) », (2001) 43 Dalloz 3443- 3445.

JUST, Herve, last year, the Safety of Quebec carried out 118 surveys into bottom of virtual pedophilia, October 3, 2002, Sélection of Reader' S Digest (Canada) Ltée, on line on : Royal gendarmerie of Canada < http://www.selectionrd.ca/mag/2000/07/cyberflics.html >.

KABLAN, Serge, Regulation of information technologies in Quebec : the philosophy of the bill 161 compared to the Canadian right, n°1, flight 7, Lex Electronica, on line on : < http://www.lex-electronica.org/articles/v7-1/Kablan.htm >.

KAMINA, Pascal, « Pornography « virtual » representing minors », Com. Com. électr. June 2002, n°6.

KNOBEL, Marc, Forum European on the Cyber-contents illegal and prejudicial : Self-regulation, the protection of the users and their aptitude to use the media, Strasbourg, November 28, 2001, the Council of Europe, FORUM (2001) 12, on line on : < http://www.humanrights.coe.int/media/cyberforum/rep-knobel(f).rtf >.

KREBS, Brian, Senators Try To Smoke Out Spyware, March 4, 2004, on line on : ecommerceTimes < http://www.ecommercetimes.com/perl/story/33039.html >.

KUNY, Terry, Filtering of the contents of Internet: platform PEAKS, labels and filters, March 23, 1998, Services of technology national the Bibliothèque information of Canada, on line on : < http://www.nlc-bnc.ca/9/1/p1-252-f.html >.

LAM, Catherine, Right of Technologies : Internet, space of freedom ? , on line on : < http://www.sos-net.eu.org/technos/expression.htm >.

LAPOINTE, Sebastien, « Your Internet provider is it discrete ? », (2003) 35 J.B. n°13.

France and safety on Internet, on line on : Safer-Internet < http://www.saferinternet.org/news/francefr.asp >.

The AFA and the Council of Europe planchent on the illicit contents, November 9, 2001, on line on : Newspaper of the Net < http://www.journaldunet.com/0111/011109fai.shtml >.

The government announces three texts for information technologies, November 13, 2002, on line : Editions of the Juris-Sorter < http://www.juris-classeur.com >.

LEPAGE, Agathe, « The fight of the European Union against the pedopornography on Internet. Haro on the paedophiles of Internet ! », Com. Com. électr. janv. 2001. n°1, 28.

LEPAGE, Agathe, « The responsibility for the suppliers of lodging and the suppliers of access to the Internet : a new challenge for the justice of XXIe century ? », Com. Com. électr. February 2002. chron. n°5, 16.

LEPAGE, Agathe, « Freedom of expression, responsibility and forums of discussions », Com. Com. électr. January 2003. Com. n°3, 18.

LESORT Fabien and Laurent SZUSKIN, Comment of the bill on the Numerical Economy, January 29, 2003, on line on : Right and New Technologies < http://www.droit-technologie.org/1_2.asp?actu_id=714 >.

The STANC, Christian, « To check before informing », Com. Com. électr. April 2001. n°40, 20.

The STANC, Christian, « The precaution is the future of the shelterer », Com. Com. électr. 2001. Com. n°22, 27-28.

MACKAY, Pierre, problems of the freedom of expression and the censure in the information flow dematerialized on the info highways, Communications with the Jacques-Cartier Talks, Lyon, December 1995, in lines on : < http://www.juris.uqam.ca/profs/mackayp/liberte.html >.

MANACH, Jean-Marc, Australia prohibits the «adult topics», 22 féb. 2001, on line on : tranfert.net < http://www.transfert.net/a4297 >.

MARZOUKI, Meryem and François SAUTEREY, Bloche Amendments: the hope of a democratic Internet, Press release of IRIS - May 18, 1999, IRIS, last updated 22/02/2001, on line on : < http://www.iris.sgdg.org/info-debat/amend-bloche0599.html >.

OLIVIER, Frederique and Eric BARBRY, « Conditions of the civil liability for the suppliers of lodging of a site on Internet network », J.C.P. 2000.II.10279, p. 577.

PEARCE, James, In Australia, the classification of the sites would be «ineffective», June 18, 2002, on line on : ZDNet Australia < http://news.zdnet.fr/story/0,,t118-s2112010,00.html >.

PICARDY, Sylvie, « Deliver Vert on the protection of the minors and human dignity in the audio-visual services and of information », D.I.T 97/1, Re-examined Quarterly, p 44.

PIETTE-COUDOL, Thierry and André BERTRAND, « The cyberspace : hell and paradise », (1995) the World, March 8, 1995, p.12.

RAVANAS, Jacques, « Freedom of expression and protection of the rights of the personality », (2000) 30 Dalloz 459 - 462.

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

REIDENBERG, Joel R., « The Yahoo business ! and the international democratization of Internet », Com. Com. électr. 2000. n°12, 14.

REPORTERS WITHOUT BORDERS, the government will track the Net surfers «not - authorized», 14.01.2004, on line on : RSF < http://www.rsf.fr/article.php3?id_article=9035 >.

NETWORK EDUCATION MEDIA, heinous Propaganda and legislation, on line on : Network education - media < http://www.media-awareness.ca/francais/enjeux/haine_sur_internet/haine_crime.cfm >.

NETWORK EDUCATION MEDIA, Analyzes heinous sites, on line on : Network education - media < http://www.media-awareness.ca/francais/enjeux/haine_sur_internet/reconnaitre_haine.cfm >.

NETWORK EDUCATION MEDIA, Summary of the Canadian Law on the rights of the person : provisions relating to heinous propaganda, on line on : Network education - media < http://www.media-awareness.ca/francais/ressources/lois/canadien/federal/droit_personne/droit_personne_haine.cfm

ROJINSKY, Cyril, « Trade electronic and responsibility for the actors of the Internet », Gaz.Pal. Rec. 2000, doctr. p.1076.

ROJINSKY, Cyril, electronic Trade and responsibility for the Internet in Europe, July 10, 2000, on line on : Right and Technology < http://www.droit-technologie.org/2_1.asp?dossier_id=26 >.

ROJINSKY, Cyril, Community approach of the responsibility for the actors of the Internet, Paris, October 11, 2000, on line on : Juriscom.net < http://www.juriscom.net/pro/2/resp20001011.htm >.

ROJINSKY, Cyril, Sens prohibits- the responsibility for the creator of hypertext link because of the illicit contents of the target site, December 17, 2002, on line on : Juriscom.net < http://www.juriscom.net >.

SALAÜN, Anne and Didier GOBERT, certification of the Web sites: classification, strategies and recommendations, February 20, 2000, on line on : Right and Technology < http://www.droit-technologie.org/2_1.asp?dossier_id=15 >.

SÉDALLIAN, Valerie, Right of the Internet, Regulation, Responsibilities, Contracts, editions Net Close, 1997, on line on : < http://www.internet-juridique.net/livre.html >.

SÉDALLIAN, Valerie, the responsibility for the technical people receiving benefits on Internet in the digital millenium American copyright act and the European draft Directive on the electronic trade, January 1999, on line on : < http://www.internet-juridique.net/chroniques/responsabilite.html >.

SÉDELLIAN, Valerie, In connection with the responsibility for the tools of research, February 19, 2000, on line on : Juriscom.net < http://www.juriscom.net/chr/2/fr20000219.htm >.

SIEBER, Ulrich, To fight hatred on Internet, Munich, January 10, 2001, on line on : OECD < http://www.observateurocde.org/news/fullstory.php/aid/500/Combattre_la_haine_sur_Internet.html >.

STROWEL, A., Nicolas IDE and Florence VERHOESTRAETE, « The directive of June 8, 2000 on the electronic trade : a legal framework for the Internet », (2001) n° 6000 Newspaper of the Courts, Brussels, p.133, on line on : Right and New Technologies < http://www.droit-technologie.org/dossiers/JT6000_directive_080600_commerce_electronique.pdf >.

THOREL, Jerome, the law on the numerical economy adopted in first reading by the Parliament, February 27, 2003, on line on : ZDNet France < http://www.zdnet.fr/actualites/business/0,39020715,2131170,00.htm >.

THOREL Jerome, Law Fountain : numerical economy on the way to frame the public expression, March 13, 2003, on line on : ZDNet < http://news.zdnet.fr/story/0,,t118-s2131870,00.html >.

TRUDEL, Pierre, FILES, Étude of the comparative responsability to the contents circulating on Internet, 1997-03-12, Industrie Canada, on line on : < http://strategis.ic.gc.ca/SSGF/sf03235f.html >.

VERBIEST, Thibault, « Bill for confidence in the numerical economy : critical analyzes », Com. Com. électr. 2003. Com. n°2, 9.

VERBIEST, Thibault and Gilone of UDEKEM, Responsibility for the suppliers of hyperlinks and search engines : last developments, August 18, 2003, on line on : Right and New Technologies < http://www.droit-technologie.org/1_2.asp?actu_id=810 >.

VERBIEST, Thibault and Etienne WÉRY, « The responsibility for the suppliers of services Internet : last jurisprudential developments », (2001) n°6000 Newspaper of the Courts, Brussels, on line on : Right and New Technologies < http://www.droit-technologie.org/dossiers/JT6000_responsabilite_fournisseurs_services_internet.pdf >.

VERBIEST, T. and É.WÉRY, the responsibility for the suppliers of tools of research and hyperlinks because of the contents for the referred sites, 2001, on line : Right and New Technologies < http://www.droit-technologie.org/dossiers/responsabilite_fournisseurs_outils_recherche_et_html.pdf >.

VERMEYS, Nicolas, the Canadian supreme Court is caught some with Al youthful pornography on the Web, February 13, 2001, on line on : Juriscom.net < http://www.juriscom.net/int/dpt/dpt34.htm >.

LIVING, Michel, the responsibility for the intermediaries of the Internet, J.C.P. ED. G. 1999.I doctr. 180.

WERY, Etienne, Racism on the Internet: 16 suppliers of accesses assigned in Paris, June 27, 2001, on line on : Right and New Technologies < http://www.droit-technologie.org/1_2.asp?actu_id=440 >.

WERY, Etienne, Affaire I show : suppliers of accesses released from the obligation of filtering, November 2, 2001, on line : Right and New Technologies < http://www.droit-technologie.org/1_2.asp?actu_id=476 >.

WERY, Etienne, the Supreme Court takes the defense of the pedophilia « virtual » : a political crisis in sight ? , April 17, 2002, on line on : Right and New Technologies <http : //www.droit-technologie.org/1_2.asp ? actu_id=569>.

WERY, Etienne, Europe agrees on a common text to fight against the childish pornography, November 4, 2002, on line on : Rights and New technologies < http://www.droit-technologie.org/1_2.asp?actu_id=666 >.

WERY, Etienne, the Council of Europe puts forth a declaration on the freedom of communication on the Internet, June 19, 2003, on line on : right and new technologies < http://www.droit-technologie.org >.

ZWEYNERT, Astrid, the number of sites paedophiles would have doubled in August 2002, 22 2003, on line on : Yahoo ! < http://fr.news.yahoo.com/030822/85/3d0cg.html >.

INTERNET ADDRESSES

http://www.licra.org/

http://www.media-awareness.ca

http://www.enough.org/

http://www.unesco.org/

http://www.bouclier.org/

http://www.iris.sgdg.org/

http://www.crtc.gc.ca/

http://libertus.net/

http://www.uneq.qc.ca

http://www.autoroute.gouv.qc.ca/

http://www.fbi.gov/

http://www.interpol.int/

http://www.ncis.co.uk/

http://www.anonymat.org/

http://www.odebi.org/

http://www.isoc.qc.ca/

http://www.unhchr.ch

APPENDIX

THE LAW N°2004-575

FOR CONFIDENCE IN the NUMERICAL ECONOMY (LEN)

The LEN^593(*), published in the Official Journal n°143 of June 22, 2004, knew a hard development. Moreover, it was submitted to the constitutional Council on May 18, 2004, which carried out the cancellation and the modification of certain provisions. Thus we analyze the principal innovations concerning the mode of responsibility for the service providers Internet (PSI) (I) and the qualification of Internet network (II).

I. service providers Internet

Article 6 of the LEN is the new treating text of the PSI. The mode of the suppliers of lodging underwent certain modifications as well as the procedure in summary procedure or on request, the notification and the obligation of monitoring.

1. The supplier of lodging

The treating new article of the supplier of lodging lays out from now on that :

« 2. The persons or entities which ensure, even on a purely free basis, for provision of the public by services of communication to the public in line, the storage of signals, writings, images, sounds or messages of any nature provided by recipients of these services cannot see their committed civil liability because of the activities or the information stored at the request of a recipient of these services if they did not have indeed knowledge of their illicit nature or facts and circumstances revealing this character or if, as of the moment when they were informed this of it, they acted promptly to withdraw these data or to make of them the access impossible.

The preceding subparagraph does not apply when the recipient of the service acts under the authority or the control of the person aimed to that the subparagraph ».

Certain modifications were thus made. The final law chose to use the formulation « revealing this illicit character ». Consequently, an only apparent character is enough to withdraw information circulating on Internet what brings a certain insecurity. It is clear that that undermines the principle of the freedom of expression and to the rights of the person. However, should be brought an important precision. Indeed, the constitutional Council issued certain reserves concerning the mode of responsibility for the PSI and added an additional condition. For this reason it stipulates that to engage the responsibility for these people receiving benefits, « it would be necessary moreover than the illicit character of denounced information is manifest or than a judge ordered the withdrawal of it ».

Another modification intervened. Indeed, the LEN adds a new provision in article 6. It lays out that the civil liability for the shelterer is not committed fact « activities or the information stored at the request of a recipient of these services ». And another subparagraph which lays out that « the preceding subparagraph does not apply when the recipient of the service acts under the authority or the control of the person aimed to that the subparagraph ». They are new provisions until not approached there by the other bills except the last project of the Senate in second reading. The LEN transposes subparagraph 2 of article 14 of the European Directive on the electronic trade^594(*) which specifies the derogatory mode of responsibility for the shelterers who does not apply when the recipient of the service acts under the control or the authority of the shelterer^595(*). Indeed, the LEN seems to want to insert the idea that the shelterer can act only if its customer makes him the request of it. It wants to frame the action of this person receiving benefits who sees himself granting a capacity of censure. This precision makes it possible to limit the withdrawals and blockings of information since from now on, it is the Net surfer who becomes the element release of the exercise of the censure^596(*). In all the case, this practice can involve important abuses and it reduces the judge to a simple role of control a posteriori if the business is carried in front of the courts. These new provisions are also taken again for the penal responsibility for the shelterers^597(*).

2. Procedure in summary procedure or on request

The legal authority can prescribe in summary procedure or on request either with the supplier of lodging or failing this, and it is about an innovation, with the FAI to prevent or put an end to a damage^598(*). The judge can thus take the required measures which is appropriate to cease the diffusion of contents considered to be illicit. He can now either cease a damage or preventing it. This new formulation transposes the directive accurately since article 13 subparagraph 3 and article 14 subparagraph 3 specify that a legal authority can require of the person receiving benefits « that it puts a term at a violation or that it prevents a violation ». The role of the judge is respected and corresponds to its competences defined in articles 808 and 809 of the new code of civil procedure^599(*).

3. The notification

Compared to the preceding projects, the formulation « optional procedure of notification » disappeared and a substitution from « considered acquired » by « to suppose » was carried out what makes it possible to reduce the burden of the proof. Indeed, when knowledge is supposed, the defendant finds himself only vis-a-vis a simple presumption, therefore the proof is lighter than the preceding one. This article thus creates « a presumption of acquisition, by the shelterer, of the knowledge of the litigious facts »^600(*) which would have probatory force in front of the judge.

Moreover, the final law comprises a procedure to fight against the untrue allegations. Certain bills had removed it. From now on, the drafting of the article is as follows : « the fact, for any person, to present at the people mentioned to the 2 contents or an activity as being illicit with an aim of obtaining the withdrawal from it or of putting an end to some the diffusion, whereas it knows this inaccurate information, is punished of sorrow a one year of imprisonment and 15000 € of fine »^601(*). This provision makes it possible to dissuade the Net surfers who would benefit from this new legislation to withdraw or make block licit information.

4. Obligation of monitoring

Once again the Parliament showed a certain lack of consensus on this point. Indeed, according to whether the bill is in front of the French National Assembly or the Senate, this obligation of monitoring differs. The final law sliced by introducing new subparagraphs which lay out :

« The preceding subparagraph is without damage of any activity of targeted and temporary monitoring required by the legal authority.

Taking into account general importance attached to the repression of the apology for the crimes against humanity, of the incentive to racial hatred as well as childish pornography, the people mentioned above must contribute to the fight against the diffusion of the infringements aimed to the fifth and eighth subparagraphs of article 24 of the law of July 29, 1881 on the freedom of the press and to article 227-23 of the penal code.

For this reason, they must set up an easily accessible and visible device making it possible any person to bring to their attention this type of data. They also have the obligation, on the one hand, to promptly inform the qualified public authorities of all illicit activities mentioned with the preceding subparagraph which would be announced to them and which the recipients of their services would exert, and, on the other hand, to make public the means that they devote to the fight against these illicit activities.

Any failure with the obligations defined in the preceding subparagraph is punished sorrows envisaged to the 1 of the VI ».

From now on, the PSI will have to carry out a certain monitoring by means of a preventive location of data relating to the apology for the war crimes, racism and the pedophilia. The Directive on the electronic trade envisages this possibility of requiring PSI which they prevent a violation. They could be brought to supervise the contents but only in one specific case^602(*). Moreover, the PSI must set up a device to facilitate the fight against these infringements.

II. The qualification of Internet network

The final law finally sliced on the qualification of Internet. Thus we will see initially, the distinction between the right of audio-visual and the applicable duty on Internet network and in second place, the creation of a new category.

1. Distinction enters the right of audio-visual and the applicable duty on Internet network

The Parliament finally decided not to allot all the regulation at only one organization, the Higher Council of Audio-visual (SCA). The new provisions create a specific right of the Internet network which does not concern the right of audio-visual with regard to the services other than those of television and the radio. Thus the LEN makes definitively leave Internet the services of audio-visual communication.

2. Creation of a new category

The LEN creates and inserts in article 1 a new concept « the communication with the public by electronic way ». This east term defines as « very placed at the disposal of the public or categories of public, by a process of electronic communication, signs, signals, writings, images, sounds or messages of any nature which do not have the character of a private correspondence »^603(*). This definition has a broad field of application which makes it possible to include the greatest possible number of media such as Internet. This new generic category is subdivided into two : on the one hand, it « audio-visual communication »^604(*) which includes/understands television and the radio on any support such as Internet and in addition, it « communication with the public on line » which is defined as any transmission, on individual request, of numerical data by an electronic process of communication^605(*). The addition of the definition of these concepts makes it possible to elude the applicable duty on Internet network and to return them more coherent faces to concerns of the PSI which are the first aimed in this law. Moreover, that also makes it possible to thus avoid the amalgams with the audio-visual right and the right of the press in certain cases.

Conclusion

The French law has its law Internet henceforth. It is not perfect and its application is likely to bring certain difficulties but it is still early to decide. It will thus be necessary to await its legal application to know if it corresponds truly to realities of the network.

* ¹ Jean-Pierre Raffarin, Speech of the Prime Minister in front of Electronic Business Group- Presentation of the plan RE/SO 2007, November 12, 2002, on line on  : site of French the Prime Minister < http://www.premier-ministre.gouv.fr/fr/p.cfm?ref=36713&d=1 > (site visited on March 12, 2004).

* ² More than one third of the French uses Internet, at least occasionally. The young people from 15 to 24 years massively became users: 68% are, that is to say to it ten points moreover than in April 2001. More than one Net surfer out of three in A a daily use, and approximately one on four uses it several times per day. See the site of Artesi (Regional Agency of Technologies and the Company of information), on line on  : < http://www.artesi-idf.com/article.php?artno=4810&headLine=srubri > (site visited on March 12, 2004).

* ³ The cyberspace is defined as the three-dimensional space of the data-processing networks where all the audio electronic signals circulate, vidéos and others. See CANADIAN STRATEGY FOR THE SEDENTARY, CAREFUL USE AND PERSON IN CHARGE FOR INTERNET, the illegal and offensive contents diffused in Internet, Ottawa, Government of Canada, 2000, on line on  : < http://www.brancher.gc.ca/cyberaverti > (site visited on March 12, 2004).

* ⁴ Pascal LAPOINTE, Utopie.net  : Reality Internet after the dream, Quebec, MultiMondes Editions, 2002, p.3.

* ⁵ Arnaud HAMON, an approach of the freedom of expression on Internet, Memory of Human right DEA and freedoms public, Paris, University of Paris X Nanterre, 2000, p. 8 and 9, on line on  : Juriscom.net < http://www.juriscom.net/uni/mem/14/presentation.htm > (site visited on March 12, 2004).

* ⁶ «  A study undertaken into 2003 to the United States by three researchers of Université of New Hampshire (Mitchell, Finkelhor and Wolak) on a national sample of 1.500 young people from 10 to 17 years highlights and illustrates the risks of involuntary exposure of these public to the contents in sexual matter on the Internet. According to results' of this work, a quarter of the participants, young regular users of the Internet, had been involuntarily exposed at least once with contents in sexual matter during the last year (...). In 32% of the cases, the questioned children had perceived images appearing of the people maintaining the sexual intercourse. In 7% of the cases, these images appeared of the violent scenes of sex. 73% of the raised cases of exposure had occurred during navigations on the Web, and 27% via electronic mails or of instantaneous messages, the study not considering other uses of the Internet. In Europe, a study undertaken on young users of the Internet within the framework of program SAFT (Safety, Awareness, Facts and Tools) in Sweden, in Norway, in Denmark, in Iceland and Ireland showed that 26 to 35% old questioned Net surfers from 9 to 16 years already had been accidentally exposed to contents violent ones or «horrible», and from 24 to 36% of them with contents of sexual or pornographic nature  »  : 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), February 11, 2004, p.12, on line on  : French Documentation < http://lesrapports.ladocumentationfrancaise.fr/BRP/044000066/0000.pdf > (site visited on March 11, 2004).

* ⁷ Id., p.9.

* ⁸ Id., p.8 and 9  : «  The quantitative investigation Way Opinion/AOL from March 2002 tends to confirm these observations. It reveals that 61% of the old Net surfers from 8 to 18 years questioned surfaient daily, and that 76% of them reached the network at least three times per week. The principal uses which the young people from 8 to 18 years within the framework of this investigation quoted are: the communication (78%), by electronic mail in particular, the search for information for the school (72%), the search for information on the personal centers of interest (70%), the discovery of new sites (63%), the remote loading (from musical or video files, 56%), the participation in forums (55%), the plays in line (46%) and meets it new buddies (39%). 97% of the young questioned Net surfers considered tool Internet «useful» for «essential»  ».

* ⁹ Mr. MAY quoted by Thierry PIETTE-COUDOL and Andre BERTRAND, in «  The cyberspace  : hell and paradise  », (1995) the World, March 8, 1995, p.12.

* ¹⁰ See the text of Pierre TRUDEL, «  Lex Electronica  », in Charles-Albert MORAND (to dir.), right seized by universalization, Brussels, Bruylant Editions, collection International law, 2001, pp. 221-268, on page 228  ; Pierre TRUDEL, right of Internet to Canada, international Conference on the Internet and the right  : right European and compared Internet, Paris, 25- September 26, 2000, p.1, on line on  : < http://droit-internet-2000.univ-paris1.fr/dossier4/Pierre-Trudel.doc > (site visited on March 11, 2004).

* ¹¹ Thibault VERBIEST and Etienne WÉRY, Right of the Internet and the company of information  : European rights, Belgian and French, Brussels, ED. Larcier, 2001, p.19.

* ¹² 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.

* ¹³ See for more information for example the Report/ratio of P. TRUDEL, COp cit., note 10, p.19 and 20.

* ¹⁴ Concept of «  transnational  » says itself what further goes than the national framework, of what relates to several nations  ; on line on  : Québécois office of the French language < http://www.oqlf.gouv.qc.ca/ > (site visited on March 12, 2004).

* ¹⁵ Cyril ROJINSKY, Community approach of the responsibility for the actors of the Internet, Paris, October 11, 2000, on line on  : Juriscom.net < http://www.juriscom.net/pro/2/resp20001011.htm > (site visited on March 12, 2004).

* ¹⁶ For Heather DE SANTIS (To fight hatred on the Internet  : international comparative study of the political approaches, strategic Planning and coordination of the policies, Hull, Ministry for the Canadian Inheritance, January 1998, p 9), «  Each State defines the contents «  illicit  » according to the approach which it adopts with respect to heinous propaganda. For example, Germany adopted strict laws in connection with the prohibited contents (symbols Nazis, incentive with hatred), while the laws of New Zealand are rather vague (hostility or ill will with regard to people)  ». It thus does not seem y to have any consensus on the term «  contents  ».

* ¹⁷ The French Bill (n°528 and n°991) entitled for confidence in the numerical economy (quoted hereafter «  Project LEN  ») (See on the site of the French French National Assembly to the following address  : < http://www.assemblee-nat.fr/12/dossiers/economie_numerique.asp >) states in its article first which it attaches telecommunication on line to the field of the audio-visual communication governed by the Law of 1 August 2000 amending the law of September 30, 1986 relating to the freedom of communication (OJ August 2, 2000, N  177)  ; See also on the debate  : Christian PAUL, Of the right and freedoms on Internet  : Report/ratio with the Prime Minister, Paris, French Documentation, 2001, p 70  ; and the Report of A. HAMON, COp cit., note 5, p. 22 and suiv.

* ¹⁸ Recommendation Rec (2001) 8 of the Committee of the Ministers to the Member States on the self-regulation of the cyber-contents, (self-regulation and the protection of the users against the contents illicit or prejudicial diffused on the new services of communications and information), adopted on September 5, 2001 by the Council of Ministers, on line on  : The Council of Europe < http://cm.coe.int/ta/rec/2001/f2001r8.htm > (site visited on March 13, 2003)  : The Committee of the Ministers of Europe encourages the Member States to define a whole of descriptors of contents which should allow a neutral certification of the contents.

* ¹⁹ Illiceity  : in general right, character of what is not allowed, of what is contrary with a text, the law and order, the moralities  ; R. legal GUILLIEN and Jean VINCENT, Terms, lexicon, 10th edition, Paris, Dalloz, 1995, p 290.

* ²⁰ Caroline OUELLET, Who makes the law on Internet  : Censure or freedom, rights and responsibilities, Quebec, the presses of the University Laval, 1998, p 98.

* ²¹ Moral  : who relates to manners, the practices and especially the codes of conduct allowed and practiced in a company  ; who is in conformity with manners, with morals and who is allowed like such  ; Paul ROBERT, the Large Robert of the French language  : alphabetical and analogical dictionary of the French language, Paris, Edition Dictionary the Robert, 2001.

* ²² Moralities  : together rules imposed by social morals  ; Paul ROBERT, the new Petit Robert  : alphabetical and analogical dictionary of the French language, text altered and amplified under the direction of Josette REY-DEBOYE and Alain REY, Nouv ED duPetitRobert Paris DictionnairesLeRobert 1995, p 1423.

* ²³ C. OUELLET, COp cit., note 20, p. 99.

* ²⁴ H. SANTIS, COp cit., note 16, p 16.

* ²⁵ This reciprocity is often lacking in particular in the recognition of the judgments abroad, like that was the case for the business Yahoo (UEJF and Licra C. Yahoo  ! Inc. and Yahoo France, TGI Paris, ref., May 22, 2000, Com. Com. électr.2000 Com. n°92, J-Chr note. GALLOUX or on line  : Review of the right of information technologies < http://www.juriscom.net/txt/jurisfr/cti/tgiparis20000522.htm > (site visited on March 13, 2003).

* ²⁶ Indeed, the United States for example, has a very broad design of the freedom of expression and Canada also has a broad design, different from the European design, much more strict. This difference will be developed further in our study.

* ²⁷ Expression borrowed from Pierre MACKAY, problems of the freedom of expression and the censure in the information flow dematerialized on the info highways, Communications with the Jacques-Cartier Talks, Lyon, December 1995, in lines on  : < http://www.juris.uqam.ca/profs/mackayp/liberte.html > (site visited on March 12, 2004).

* ²⁸ Europe set up Eurojust, by a Council Decision of 28 February 2002 instituting Eurojust in order to reinforce the fight against the serious forms of criminality (OJ C.E n°L 63 of the 06/03/2002). This body was instituted in order to improve the legal co-operation in order to fight effectively against the serious forms of criminality; to facilitate the coordination of the actions of investigation and the continuations covering the territory of several Member States.

* ²⁹ Europe drew up the Europol Convention, which is the European Office of police force, in order to improve the police co-operation between the Member States to fight against terrorism, the illicit traffic of drugs and the other serious forms of international criminality. This Convention was installation by an Act of the Council, of July 26, 1995, bearing establishment of convention creating European Office of police force (Europol Convention) (OJ C.E n°C 316 of the 27/11/1995).

* ³⁰ Definition of «  contents  » and «  contents Internet  » taken on the Québécois Office of the French language, on line on  : < http://www.oqlf.gouv.qc.ca/ > (site visited on March 12, 2004).

* ³¹ P. ROBERT, COp cit., note 21.

* ³² Id.  ; See also the definition of Sylvie PICARDY, Delivers Green on the protection of the minors and human dignity in the audio-visual services and of information, D.I.T 97/1 p. 44.

* ³³ CANADIAN STRATEGY FOR THE SEDENTARY, CAREFUL USE AND PERSON IN CHARGE FOR INTERNET, COp cit., note 3.

* ³⁴ Id., p 2 and 3.

* ³⁵ COMMISSION OF THE EUROPEAN COMMUNITIES, Action plan aiming at promoting a surer use of Internet, November 26, 1997, on line on  : europa < http://europa.eu.int/information_society/programmes/iap/docs/pdf/call/1999/filterfr1.pdf > (site visited on March 12, 2004)  : This Plan was prolonged two years by the Commission, March 25, 2002 (on line on  : europa < http://www.info-europe.fr/europe.web/document.dir/actu.dir/AC005733.htm > (site visited on July 31, 2003)).

* ³⁶ Teresa FUENTES-CAMACHO (to dir.), international dimensions of the right of the cyberspace, Collection Right of the cyberspace, Paris, Edition UNESCO - Économica, 2000, p 125.

* ³⁷ Articles 153 and suiv. civil code of Quebec (L.Q. 1991, c.64) (quoted hereafter «  D.C.Q.  ») and article 488 French Civil code (101e ED., Paris, Dalloz, 2002) (quoted hereafter «  C.civ  »).

* ³⁸ S. PICARDY, loc. cit., note 32  ; Recommendation Rec (2001) 8 of the Committee of the Ministers to the Member States on the self-regulation of the cyber-contents, above mentioned, note 18.

* ³⁹ 21% of the parents indicate that their children had access to explicit material from the sexual point of view (with the knowledge of the parents) and 6% of the children received sexual material not requested (with the knowledge of the parents)  ; percentages borrowed from  : CANADIAN STRATEGY FOR THE SEDENTARY, CAREFUL USE AND PERSON IN CHARGE FOR INTERNET, COp cit., note 3, p 6.

* ⁴⁰ Id.  : 51% of the Canadian parents support that their principal concern concerning the access of their children to Internet is the inappropriate contents.

* ⁴¹ September 11, 2001 is the date on which intervened the attack perpetuated against the United States against the two turns of World Trade Center.

* ⁴² See CANADIAN SERVICE OF THE RENSEIGNEMENTDESECURITY, N°2000 Ratio/01 Tendencies of terrorism, Prospects, Ottawa, 2000, p. 2-3  ; Limore YAGIL, Terrorism and Internet  : The cyberwar  : test, Montreal Traitdunion 2002.

* ⁴³ Id., p. 8.

* ⁴⁴ Definition of article 320 (8) of the Canadian criminal Code (L.R.C. (1985), C.C-46, MOD. by L.R.C. (1985), c.2 (1st supp.)) (quoted hereafter «  C.cr.  »)  : heinous propaganda is «  Very written, sign or visible representation which recommends or foments the genocide, or whose communication by any person constitutes an infringement under article 319  ».

* ⁴⁵ All these figures must be taken with reserve like specifies it the author Limore YAGIL in his Terrorisme work and Internet  : The cyberwar  : test (COp cit., note 42, p. 113) since it should not be forgotten that it is difficult to count all the sites likely to be regarded as racists. The difficulties are numerous. Initially, it there with the barrier of the language, Anglo-Saxon sites being studied more. The researchers cannot know all subtleties of the languages, the leaders and the ideologies of the various countries. Then, they are the Net surfers themselves which denounce the racist sites. Lastly, there is a last problem which is that of the facility for the organizations to change name, of address, suppliers of services Internet. This facility of change does not make it possible to recall the sites efficiently. See the EUMC, Activities off the European Monitoring Centers one Racism and Xenophobia, Annual report  : Annual Carryforward 2002, on line on  : < http://www.eumc.eu.int/eumc/index.php > (site visited on March 13, 2003).

* ⁴⁶ H. SANTIS, COp cit., note 16, p 8.

* ⁴⁷ In the business which blames the gate Front 14 which offered a lodging only to the Web sites racists, the French judge stated  : «  Waited, and first of all, that it is useless to hope in an even minimal self-regulation of Internet, network delivered more and more to disproportion, with the any power of «  I want  », and «  become the last refuge of all excesses, all the provocations, and «  the means of all the aggressions  »  »  ; I show C. Société General Communications and A., TGI Paris, ord. ref., 30/10/2001, Com. Com. électr. January 2002. n°1, p. 30, n°8  ; See also the article of Etienne WERY, Racism on the Internet: 16 suppliers of accesses assigned in Paris, June 27, 2001, on line on  : Right and New technologies < http://www.droit-technologie.org/1_2.asp?actu_id=440 > (site visited on March 12, 2004).

* ⁴⁸ The sites néonazis want to ensure the education and the future of the young people in their offering plays on the Web. For example, there can be cross words where it is necessary to find the word starting from the following definition  : «  The color associated with our race, in five letters  », «  the scientific name for the white race  » (See the following sites  : < http://www.stormfront.org >  ; < http://www.kukluxklan.org >  ; < http://www.nazi.org >  ; < http://www.rahowa.com >  ; < http://www.moqawama.tv/page2/main.htm >) to also.Voir the text of Ulrich SIEBER, To fight hatred on Internet, Munich, January 10, 2001, on line on  : OECD < http://www.observateurocde.org/news/fullstory.php/aid/500/Combattre_la_haine_sur_Internet.html >  ; Marc KNOBEL, European Forum on the cyber-contents illegal and prejudicial  : self-regulation, the protection of the users and their aptitude to use the media, Strasbourg, November 28, 2001, on line on  : site of the Council of Europe < http://www.humanrights.coe.int/media/cyberforum/rep-knobel(f).rtf > (site visited on March 13, 2003).

* ⁴⁹ France has evil to make carry out these judgments in the United States with the reasons which they are contrary with their first amendment on the freedom of expression. For example, judgments on the Yahoo business (above mentioned, note 25  ; TGI Paris, ref. Oct. 30, 2001, Com. Com. électr. 2002. Com. n°8, CH note. STANC  ; TGI Paris 17th CH., 26 févr. 2002. Com. Com. électr.2002 Com. n°77, note A. LEPAGE  ; T.corr.Paris, 17th CH., 11 févr.2003, Com. Com. électr. 2003. act. n°61) was declared inapplicable on the American territory (United-State District Short for the Northern District off California, San Jose Division, Nov. 7, 2001, Com. Com. électr. 2002. Com. n°9) what limits their range singularly.

* ⁵⁰ Indeed, Michele FALARDEAU-RAMSAY, president of the Canadian Commission of the rights of the person, stress that «  the heinous propaganda and messages do not have their place in the Canadian company and as a tool of information of masses, Internet has a considerable incidence on our everyday lifes (...). We know now that Internet does not escape the laws and that this network cannot be used to promote hatred  » (CANADIAN COMMISSION OF THE RIGHTS OF THE PERSON, Internet site of heinous propaganda of Ernst Zundel is illegal, declared the court, Ottawa - on January 18, 2002, on line on  : < http://www.chrc-ccdp.ca/news-comm/2002/NewsComm180102.asp?&&l=e&l=f > (site visited on March 12, 2004).

* ⁵¹ In many countries, the law is not particularly centered on the judgment of «  hatred  », but the contents aim rather «  lending to controversy  » or «  in illicit matter  » (H. OF SANTIS, COp cit., note 16, p 7). The countries in particular choose, Europe, the option to penalize all the forms of racisms.

* ⁵² U. SIEBER, loc. cit., note 48.

* ⁵³ UEJF and Licra C. Yahoo  ! Inc. and Yahoo France, above mentioned, note 25  ; Public ministry, UEJF and other C. Jean-Louis C., CA Paris, 11th CH., December 15, 1999 in Alain BENSOUSSAN and Yann BREBAN, stop-tendencies of the Internet, Paris, edition Germs Sciences, 2000, p.22.

* ⁵⁴ Law on the freedom of the press of July 29, 1881, on line on  : Legifrance < http://www.legifrance.gouv.fr/WAspad/RechercheSimpleLegi > (site visited on March 12, 2004).

* ⁵⁵ Law n°90-615 of 13 July 1990 tending to repress any racist act, anti-semite or xenophobe, OJ July 14, 1990, p.8333  ; on line on  : Legifrance < http://www.legifrance.gouv.fr/WAspad/RechercheSimpleLegi > (site visited on March 12, 2004). The French government supported in the Faurisson business, that this specific law was made necessary, the theses negationnists escaping prohibition from discrimination or incentive to usually applicable hatred  : Faurisson C. France CCPR/C/58/D/550/1993.

* ⁵⁶ Law n°2003-88 of 3 February 2003 aiming at worsening the sorrows punishing the infringements in racist matter, anti-semite or xenophobe, J.O n°29 of February 4, 2003 p.2104.

* ⁵⁷ Dispatch Editions of the Juris-Sorter of January 27 and December 11, 2003, in line on the site Juris-Sorter < http://www.juris-classeur.com >.

* ⁵⁸ Charter of the basic rights of the European Union, (2000/C 364/01). It states in article 21 which is prohibited any discrimination based in particular on the sex, the race, the color, the ethnic or social origins, genetic characteristics, the political language, religion or convictions, opinions or any other opinion, the membership of a national minority, fortune, the birth, a handicap, the age where sexual orientation.

* ⁵⁹ Directive 2000/78/EC of the Council of bearing 27 November 2000 creation of a general framework in favor of the equal treatment de employment work, OJ E.C. n° L 303/16 dated the 2/12/2000  ; on line on  : europa < http://europa.eu.int/comm/employment_social/news/2001/jul/directive78ec_fr.pdf >  ; it was adopted into practice to put the principle of equal treatment between the people, whatever their ethnic or racial origin.

* ⁶⁰ See THE COUNCIL OF THE EUROPEAN UNION, Annual report of the European Union on the humans right, Secretariat-general, October 21, 2002, on line on  : europa < http://europa.eu.int/comm/external_relations/human_rights/doc/report02_fr.pdf > (site visited on March 12, 2004).

* ⁶¹ The European Observatory of the racist and xenophobe phenomena, located in Vienna, was created by Payment (EC) n° 1035/97 of the Council of June 2, 1997 (OJ E.C. n°L 151 of the 10/06/1997) and has an independent statute to fight against racism and xenophobia. The nerve center of the activities of the Observatory is the European Network of information on racism and xenophobia (RAXEN). It has as a task to collect data and information as well at the national level as European. See also the final Report/ratio of the European Commission heading Evaluation of the European Observatory of the racist and xenophobe phenomena, May 2002, on line on  : europa < http://europa.eu.int/comm/employment_social/fundamental_rights/pdf/origin/eumc_eval2002_fr.pdf >  ; < http://www.eumc.at > (site visited on March 12, 2004).

* ⁶² Treaty establishing the European Community of 25 March 1957 as modified by the Treaty of Nice, signed in Nice on February 26, 2001, OJ E.C. n° C 80/1 of the 10/03/2001, on line on  : < http://europa.eu.int/eur-lex/fr/treaties/dat/nice_treaty_fr.pdf > (site visited on March 12, 2004).

* ⁶³ Article 13 of the treaty of EC provides that «  without damage of the other provisions of the treaty and in the limits of competences that this one confers on the Community, the Council, ruling unanimously on Commission proposal and consultation of the European Parliament, can take measurements necessary in order to fight any discrimination based on the sex, the race or the ethnic origin, the religion or the convictions, a handicap, the age or the sexual orientation  ». On the basis of this article, the Council adopted a Directive 2000/43/EC relating to the implementation of the principle of the equal treatment between the people without reference of race or ethnic origin. Moreover, in the Report/ratio of February the 24, and 25 2000 on the European Conference on the fight against racism at the European level (EUROPEAN UNION AGAINST RACISM, in line on  : europa < http://europa.eu.int/comm/employment_social/fundamental_rights/pdf/pubdocs/confreport2000_fr.pdf > (site visited on March 13, 2004)) who lies within the scope of the Commission proposals presented in November 1999 on the basis of article 13 of the Treaty, the participants indicated their will to accelerate the application of this article in order to build a European company on the values of the tolerance and the basic rights.

* ⁶⁴ See the following addresses  : < http://europa.eu.int/comm/employment_social/fundamental_rights/prog/glines2_fr.pdf >  ; < http://europa.eu.int/comm/employment_social/fundamental_rights/docs/preinfo01_fr.pdf > (site visited on March 13, 2004).

* ⁶⁵ Resolution LMBO (2002) 8 relating to the statute of the European Commission against racism and the intolerance (ECRI) adopted by the Committee of the Ministers on June 13, 2002 at the time of the 799e meeting of Delegated Ministers, on line on  : The Council of Europe < http://www.coe.int/T/F/Droits%5Fde%5Fl%27homme/Ecri/1%2DECRI/ECRI_statut.asp#TopOfPage > (site visited on March 13, 2004).

* ⁶⁶ THE COUNCIL OF THE EUROPEAN UNION, Annual report of the European Union on the humans right, COp cit., note 60, p. 112.

* ⁶⁷ Convention on the cybercriminality, CO. n°: 185, Budapest, November 23, 2001, on line on  : Site of the Council of Europe < http://conventions.coe.int/Treaty/FR/Cadreprincipal.htm > (site visited on March 13, 2004).

* ⁶⁸ Additional protocol relating to the incrimination of acts of racist nature and xenophobe made by bais information processing systems, CO. n°  : 189, Strasbourg, January 28, 2003, on line on  : Site of the Council of Europe < http://conventions.coe.int/Treaty/FR/WhatYouWant.asp?NT=189 > (site visited on March 12, 2004)  ; See also for more information the site of  : International Network Against Cyber Hastens < http://www.inach.net/content/cctreatyaddexfr.html >  ; The AFA and the Council of Europe planchent on the illicit contents, November 9, 2001, on line on  : Newspaper of the Net < http://www.journaldunet.com/0111/011109fai.shtml > (site visited on March 12, 2004).

* ⁶⁹ International Convention on the elimination of all the forms of racial discrimination, (1969) 660 R.T.NU. 195  ; entry into force, January 4, 1969, on line on  : site of Office of the High Commission of the United Nations to the humans right < http://www.unhchr.ch/french/html/menu3/b/d_icerd_fr.htm > (site visited on March 13, 2004).

* ⁷⁰ See the site of Office of the High Commission of the United Nations to the humans right  : < http://www.unhchr.ch/pdf/reportfr.pdf > (site visited on March 13, 2004).

* ⁷¹ Declaration of the United Nations on the elimination of all the forms of racial discrimination, on line on  : site of Office of the High Commission of the United Nations to the humans right < http://193.194.138.190/french/html/menu3/b/9_fr.htm >; Declaration on the elimination of all the forms of intolerance and discrimination based on the religion or the conviction, in line on  : site of Office of the High Commission of the United Nations to the humans right < http://193.194.138.190/french/html/menu3/b/d_intole_fr.htm >  ; Declaration on the fundamental principles concerning the contribution of the bodies of information to the reinforcement of peace and international comprehension, with the promotion of the humans right and the fight against racism, apartheid and the incentive with the war, on line on  : site of Office of the High Commission of the United Nations to the humans right < http://193.194.138.190/french/html/menu3/b/d_media_fr.htm >; Declaration on the racial race and prejudices, on line on  : site of Office of the High Commission of the United Nations to the humans right < http://193.194.138.190/french/html/menu3/b/d_prejud_fr.htm > and Declaration of the rights of the people belonging to national minorities or ethnic, religious and linguistic, on line on  : site of Office of the High Commission of the United Nations to the humans right < http://193.194.138.190/french/html/menu3/b/d_minori_fr.htm > (site visited on March 13, 2004).

* ⁷² See its site with the following address  : < http://www.licra.org/ > (site visited le13 March 2004).

* ⁷³ R.C. Keegstra, [1990] 3 R.C.S. 697; See also Sylvette GUILLEMARD and Maxime ST-HILAIRE, 1982-2001 twenty years of great judgments of the Supreme Court of Canada  : 45 decisions chosen, presented and with accompanying notes, Montreal, Wilson and Lafleur, 2002, p.69  ; Michael GEIST, Internet Law in Canada, 3rd ED., Ontario, Captus Near, 2002, p. 172.

* ⁷⁴ Irwin Toy Ltd. C. Quebec (Attorney General), [1989] 1 R.C.S. 927.

* ⁷⁵ C.cr., above mentioned, note 44 and Loi of 2001 modifying the criminal right, L.C. 2002, C. 13 (Bill C-15A).

* ⁷⁶ Law on broadcasting, 1991, c.11  ; L.R.C., C.B-9.01.

* ⁷⁷ Canadian law on the rights of the person, L.R.C. (1985), c.H-6.

* ⁷⁸ Canadian charter of the rights and freedoms, left I the Constitutional Law of 1982 [appendix B of the Law of 1982 on Canada (1982, R.-U., C. 11)].

* ⁷⁹ Québécois charter of the rights and freedoms of the person, L.R.Q., c.C-12.

* ⁸⁰ C.cr., above mentioned, note 44  ; See the following articles  : on line on  : Network education media, heinous Propaganda and legislation, < http://www.media-awareness.ca/francais/enjeux/haine_sur_internet/haine_crime.cfm >  ; Analyze heinous sites, < http://www.media-awareness.ca/francais/enjeux/haine_sur_internet/reconnaitre_haine.cfm > (site visited on March 13, 2004).

* ⁸¹ In stop R.C. Goldman [1980] R.C.S. 976, the supreme Court of Canada studied the difference between the private communication and the private conversation.

* ⁸² An electronic babillard is «  a computerized service of exchange of information managed by an organization or a company, which one reaches by modem, and which makes it possible to the users to post messages and to answer it, to exchange files, to communicate with sets of themes groups and sometimes to connect themselves to Internet  ». Definition taken of the Québécois Office of the French language < http://www.oqlf.gouv.qc.ca/ > (site visited on March 13, 2004).

* ⁸³ Article 2 (b)  : «  Each one has following fundamental freedoms  : (b) freedom of thought, belief, opinion and expression, including and other the mean of communication freedom of the press  »  ; Charter Canadian of the rights and freedoms, above mentioned, note 78.

* ⁸⁴ R.C. Keegstra, above mentioned, note 73: the Court ruled that the provisions of the criminal Code which prohibit the diffusion of heinous matter violate the freedom of expression but are safeguarded by the article first Canadian Charter of the rights and freedoms  ; R.C. Andrews, [1990] R.C.S. 870.

* ⁸⁵ C. OUELLET, COp cit., note 20, p. 59  ; R.C. Zundel, [1992] 2 R.C.S. 731.

* ⁸⁶ Law Canadian on the rights of the person, above mentioned, note 77  ; Summary of the Canadian Law on the rights of the person  : provisions relating to heinous propaganda, on line on  : Network education - media < http://www.media-awareness.ca/francais/ressources/lois/canadien/federal/droit_personne/droit_personne_haine.cfm > (site visited on March 13, 2004).

* ⁸⁷ Article 13 of the Canadian Law on the rights of the person stipulates that constitutes a discriminatory act «  the fact for a person or a group to use or make use a telephone in a way repeated while resorting or while making resort to the services of a company of telecommunication coming under the responsibility of the Parliament to approach or make tackle questions likely to expose to hatred, the contempt or ridiculous of the people belonging to an identifiable group for a reason for illicit distinction  ».

* ⁸⁸ McAleer C. Canada (Commission of the rights of the person), [1996] 2 c.f. 345  : «  The paragraph 13 (1) violate article 2 of the Charter. (I) The violation is however justified under the terms of the article first because the objective of paragraph 13 (1), which is to promote the equal opportunity independently of the discriminatory considerations and, in the same way, to prevent the gravity of the damage caused by heinous propaganda, is sufficiently important to justify the exemption from the freedom of expression  »  ; Canada (Commission of the rights of the person) C. Canadian Liberty Net, [1998] 1 R.C.S. 626.

* ⁸⁹ Charter Québécois of the rights and freedoms of the person, above mentioned, note 79.

* ⁹⁰ The Center for the equal opportunity and the fight against racism underlined in his annual report of 2002 that the complaints - relating to racism on Internet- are unceasingly in increase  ; on line on  : Center for the equal opportunity and the fight against racism < http://www.antiracisme.be/fr/cadre_fr.htm > (site visited on March 13, 2004).

* ⁹¹ See the management Report of THE ADVISORY NATIONAL COMMISSION OF THE HUMANS RIGHT, the fight against racism and xenophobia, 2002, on line on  : French Documentation < http://www.ladocumentationfrancaise.fr/BRP/034000129/0000.pdf > (site visited on March 13, 2004).

* ⁹² For more information, to see Philippe JOUGLEUX, criminality in the cyberspace, Memory of Right DEA of the Media, Aix-Marseilles, Faculty of Law and political science, University of right, saving and sciences in Aix-Marseilles, 1999.

* ⁹³ L. YAGIL, COp cit., note 42, p.8.

* ⁹⁴ Id., p. 56.

* ⁹⁵ Daniel MARTIN and Frederic-Paul MARTIN, Cybercrime  : threats, vulnerabilities and responses, Paris, university Presses of France, 2001, p.69.  ; R.C. Lavoie [2000] J.Q No 468  ; Q.J. (Quicklaw) n°468, (Court of Quebec).

* ⁹⁶ Law n°2001-1062 of November 15, 2001 on daily safety, OJ n°266 November 16, 2001, p. 18215.

* ⁹⁷ Law n° 86-1020 relating to the fight against terrorism, on line on  : Legifrance < http://www.legifrance.gouv.fr > (site visited on March 13, 2004).

* ⁹⁸ Antiterrorist law, S.R.C 2001, c.41.

* ⁹⁹ Project approved by the multidisciplinary Group on the international action against terrorism (GMT) with its 6th meeting (Strasbourg, December 11-13, 2002) and by the Committee of the ministers on the level of the Delegates to their 828e meeting (Strasbourg, February 13, 2003).

* ¹⁰⁰ SERVICECANADIENDURENSEIGNEMENTDESECURITY, n°2000 Ratio/04 international Terrorism  : threaten for Canada, Ottawa, coll Prospects, 2000.

* ¹⁰¹ International Convention for the repression of the financing of terrorism, December 8, 1999, on line on  : France-diplomacy < http://www.france.diplomatie.fr/actual/dossiers/terroris/convention.html > (site visited on March 13, 2004).

* ¹⁰² France signed on January 10, 2000 and Canada, February 10, 2000.

* ¹⁰³ Adopted in New York on November 15, 2000. France signed Convention on December 12  2000 and ratified by the Law n°2002-1040 of 6 August 2002 authorizing the ratification of the convention of the United Nations against organized transnational criminality, published with the OJ n°183 of August 7, 2002. Canada signed Convention and its protocols on the illicit traffic of migrants and the draft of people in Palermo, in Italy, December 14, 2000, and it ratified it on May 14, 2002.

* 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.

* 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/ >.

* ¹⁵⁵ UEJF C. Calvacom and others, TGI Paris, ord.réf., June 12, 1996.

* ¹⁵⁶ C. civ., above mentioned, note 37.

* ¹⁵⁷ V. Lacambre E.C. Lefèbure-Hallyday, TGI Paris, ord.réf., June 9, 1998, Cah. Lamy Data processing. 1998.E.1, note F. OLIVIER and E. BARBRY.

* ¹⁵⁸ Indra BALASSOUPRAMANIANE, «  The responsibility for the shelterers  », (2000) 32 J.duB n°10, June 1, 2000, on line on  : < http://www.barreau.qc.ca/journal/frameset.asp?article=/journal/vol32/no10/surlenet.html > (site visited on March 13, 2004)  ; C. PAUL, COp cit., note 17, p. 41.

* ¹⁵⁹ Lacoste C. SA Multimania Production and A., TGI Nanterre, 1st CH. A., December 8, 1999, J.C.P. 2000.II.10279, note Frederique OLIVIER and Eric BARBRY.

* ¹⁶⁰ Id.  : The activity of a person receiving benefits of lodging is defined as «  durable service of storage of information which domiciliation on its waiter makes accessible available and to the people eager to consult them  ».

* ¹⁶¹ See for more information  : Sabine MARCELLIN and Lionel COSTES (to dir.), Lamy right Guide of data processing and the networks  : Solutions and applications - Practical contractual, Paris, ED. Lamy, 2002, p. 699  ; Frederique OLIVIER and Eric BARBRY, Conditions of the civil liability for the suppliers of lodging of a site on Internet network, J.C.P. 2000. II.10279, p.577  ; and finally, Thibault VERBIEST and Etienne WERY, «  The responsibility for the suppliers of services Internet  : last jurisprudential developments  », (2001) n°6000 Newspaper of the Courts, Brussels, p.165.

* ¹⁶² Multimania C. Lynda Lacoste, CA Versailles, June 8, 2000, on line on  : < http://www.gitton.net/jurisprudence/r2000-06-08.htm > (site visited on March 13, 2004).

* ¹⁶³ Lacoste C. SA Multimania Production and A., above mentioned, note 159.

* ¹⁶⁴ Id.

* ¹⁶⁵3 Swiss, SNC 3SH, Helline, Redcats, Redoute, the Which source C. Axinet Communication and Consorts Guiffault, TGI Nanterre, January 31, 2000, ord.réf., on line on  : legalis.net < http://www.legalis.net/cgi-iddn/french/affiche-jnet.cgi?droite=internet_illicitte.htm >; Pagotto C. Gallopin, Lacambre and others, TGI Paris, March 24, 2000, on line on  : Juris-sorter < http://www.juris-classeur.com/ > (visited sites on March 13, 2004)  ; See also S. MARCELLIN and L. COSTES (to dir.), Lamy Guide, COp cit., note 161, n°2813, p.1588.

* ¹⁶⁶ The creator of the site is responsible on the base for this article 1382 C. civ.  : «  Done everything unspecified of the man, who causes with others a damage, obliges that by the fault of which it arrived, to repair it  ».

* ¹⁶⁷ The mode of responsibility for the supplier of lodging must be established on the base of article 1383 C. civ.  : «  Each one is responsible for the damage that it because not only by its fact, but still by its negligence or its imprudence  ».

* ¹⁶⁸ Multimania C. Lynda Lacoste, above mentioned, note 162.

* ¹⁶⁹ UEJF and Licra C. Yahoo  ! Inc. and Yahoo France, above mentioned, note 25.

* ¹⁷⁰ Joel R. REIDENBERG, «  The Yahoo business  ! and the international democratization of Internet  », Com. Com. électr. May 2000. n°12, p.14,

* ¹⁷¹ See the article of Luc GRYNBAUM, «  The Directive «  trade electronic  » or worrying it return of legal individualism  », Com. Com. électr. July/August 2001. n°7-8, p.14. These current techniques available are not nevertheless effective.

* ¹⁷² United-State Short for the Northern District off California, San Jose Division, above mentioned District, note 49.

* ¹⁷³ American constitution of September 17, 1787, above mentioned, note 147.

* ¹⁷⁴ The correctional Court of Paris released the former president of Yahoo. The magistrates judged that nor the offense «  of apology for crime, nor the infringment of port or uniform, badge or emblem of a guilty person of crime against humanity  », were not made up. This judgment puts an end to the Yahoo business. See the current events of Yahoo France, Sales of Nazis objects  : justice release the ex-owner of Yahoo, Tuesday February 11, 2003, on line on  : < http://fr.news.yahoo.com/030211/85/31mek.html >  ; and the court of Paris puts out of cause the ex-owner of Yahoo in the sale of objects Nazis, Tuesday February 11, 2003, on line on  : < http://fr.news.yahoo.com/030211/1/31mhj.html > (visited sites on March 13, 2004).

* ¹⁷⁵ I show C. Société General Communications and A., above mentioned, note 47  ; See also the article Etienne WERY, Affaire I show  : suppliers of accesses released from the obligation of filtering, November 2, 2001, on line on  : Right and New Technologies < http://www.droit-technologie.org/1_2.asp?actu_id=476 > (site visited on March 13, 2004).

* ¹⁷⁶ Directive 2000/31/EC of the European Parliament and the Council of June 8, 2000 relating to certain legal aspects of the services of the company of information, and in particular of the electronic trade, in the domestic market (hereafter quoted «Directive on the electronic trade»), OJ C.E, n° L 178 of the 17/07/2000, p. 0001- 0016  ; and on line on  : < http://europa.eu.int/smartapi/cgi/sga_doc?smartapi!celexapi!prod!CELEXnumdoc&lg=fr&numdoc=32000L0031&model=guichett > (site visited on March 13, 2004).

* 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.

* ¹⁹⁰ Id. (quoted hereafter «  Law of August 1, 2000  »).

* ¹⁹¹ Directive on the trade electronic, above mentioned, note 176.

* ¹⁹² Law of August 1, 2000, above mentioned, note 17.

* ¹⁹³ The judges subjected the suppliers of lodging to obligations of monitoring of the contents circulating on their waiters in particular with an obligation of vigilance and diligence.

* ¹⁹⁴ Agathe LEPAGE, «  The responsibility for the suppliers of lodging and the suppliers of access to the Internet  : a new challenge for the justice of XXIe century  ?  », Com. Com. électr. February 2002. chron. n°5, p. 16  : «  the supplier of access seems to have remained subjected to the common right when the directive withdraws it by principle from any responsibility, while the responsibility for the supplier of lodging reaches a maximum with a threshold lower than than considers the directive  ».

* ¹⁹⁵ Id.  : Matter of ALIVE Michel taken in the article of A. LEPAGE.

* ¹⁹⁶ The Fillon AMENDMENT of June 1996 is aimed here since it had tried to introduce the software of filtering into the revision of this law.

* ¹⁹⁷ Directive on the trade electronic, above mentioned, note 176. It authorizes the Member States to take such obligations of filtering in Considering 40 of the Directive  : «  the people receiving benefits of the services have, in certain cases, the duty to act to avoid the illegal activities or to put an end to it. The present directive must constitute the adequate base for making of fast and reliable mechanisms making it possible to withdraw illicit information and to make the access to those impossible. It would be appropriate that such mechanisms are elaborate on the basis of voluntary agreement negotiated between all the parts concerned and that they are encouraged by the Member States (...)  ».

* ¹⁹⁸ Id., art 12  ; See A. LEPAGE, «  The responsibility for the suppliers of lodging and the suppliers of access to the Internet  : a new challenge for the justice of XXIe century  ?  », loc. cit., note 194.

* ¹⁹⁹ Decision n°2000-433 cd. of July 27, 2000, Law amending Law N 86-1067 of September 30, 1986 relating to the freedom of communication.

* ²⁰⁰ Id.  ; See Gerard HAAS and Olivier of TISSOT, the new mode of responsibility for the shelterers instituted by the Law n°2000-719 of 1 August 2000 amending the law n°86-1067 of September 30, 1986 relating to the freedom of communication, Com. Com. électr. March 2001. n°29, p. 24.

* ²⁰¹ Michele TABAROT, n°608 Report/ratio on the bill (n°528) for confidence in the numerical economy, National Parliament, February 11, 2003, on line on  : site of the French National Assembly < http://www.assemblee-nat.fr/12/rapports/r0608.asp > (site visited on March 13, 2004).

* ²⁰² Directive on the trade electronic, above mentioned, note 176, art 14.

* ²⁰³ SA Ciriel C. SA Free, TGI Paris, ord. ref., February 6, 2001, Com. Com. électr. May 2001. Com. n°50, obs. CH. THE STANC.

* ²⁰⁴ The new text founds a specific mode for the suppliers and the rule wants that the special texts derogate from the general texts. See G. HAAS and O. of TISSOT, loc. cit., note 200.

* ²⁰⁵ Law of August 1, 2000, above mentioned, note 17, art 43-9.

* ²⁰⁶ A. LEPAGE, «  The responsibility for the suppliers of lodging and the suppliers of access to the Internet  : a new challenge for the justice of XXIe century  ?  », loc. cit., note 194, 13.

* ²⁰⁷ Directive on the trade electronic, above mentioned, note 176  ; See for information  : Alain STROWEL, Nicolas IDE, and Florence VERHOESTRAETE, «  The Directive of June 8, 2000 on the electronic trade  : a legal framework for the Internet  », (2001) n° 6000 Newspaper of the courts, Brussels, p.133, on line on  : Right and New technologies < http://www.droit-technologie.org > (site visited on March 13, 2004).

* ²⁰⁸ Definition given to Considering 17 of the Directive on the electronic trade (above mentioned, note 175) and article 2 (A) which return to the article 1st, paragraph 2 of the Directive n°98/34/EC relating to the lawful mechanism of transparency as modified by the Directive n°98/48/EC.

* ²⁰⁹ Id., art 22.

* ²¹⁰ S. MARCELLIN and L. COSTES (to dir.), COp cit., note 161, n°2818, p. 1591.

* ²¹¹ Directive on the trade electronic, above mentioned, note 176, art 1st (6).

* ²¹² Id., art 5 and suiv.

* ²¹³ Federal Act Establishing the General Conditions for Information and Communication Services- Information and Communication Services Act- (Information- und Kommunikationsdienste- Gesetz- IuKDG), on line on: < http://www.iid.de/rahmen/iukdgebt.html > (site visited on March 13, 2004)  : The Directive on the electronic trade (above mentioned, note 176) takes again certain elements of the German Law in particular on three points  : precise identification of certain functions of technical intermediaries on the network, the édiction of a safe principle of irresponsibility on certain precisely defined assumptions and finally, the reference with the rules of the common right if their responsibility would be committed  ; See Cyril ROJINSKY, loc. cit., note 15.

* ²¹⁴ DIGITAL Millenium Act Copyright, public Law n°105-304, 112 Stat. 2860 (October 28, 1998), (quoted hereafter «  DMCA  »), on line on: < http://www.eff.org/IP/DMCA/hr2281_dmca_law_19981020_pl105-304.html > (site visited on March 13, 2004)  ; See for information  : T. VERBIEST and E. WERY, Right of the Internet and the company of information  : European rights, Belgian and French, COp cit., note 11, p. 214 and suiv.  ; Valerie SÉDALLIAN, the responsibility for the technical people receiving benefits on Internet in the digital millenium American copyright act and the European draft Directive on the electronic trade, January 1999, on line on  : < http://www.internet-juridique.net/chroniques/responsabilite.html > (site visited on March 13, 2004)  ; SANTIAGO CAVANILLAS MUGICA and A., electronic Trade  : the time of the certainty, Books of the CRID n°17, Brussels, Bruylant, 2000, p.33 and suiv.

* ²¹⁵ It should be specified that the field of application of the two texts is different. Indeed, the American Law is limited to the royalty whereas the European text applies to any type of activity.

* ²¹⁶ Directive on the trade electronic, above mentioned, note 176, art 12.

* ²¹⁷ Id., art 13.

* ²¹⁸ Id., art 14 and considering 46.

* ²¹⁹ Id., art 12 (3) and 13 (2).

* ²²⁰ Id., art 15 and considering 47.

* ²²¹ Id., art 16.

* ²²² Id., art 17 and 18.

* ²²³ Id., art 19.

* ²²⁴ Id., art 20.

* ²²⁵ COMMISSION IN THE EUROPEAN PARLIAMENT, First report/ratio on the application of directive 2000/31/EC of the European Parliament and the Council of June 8, 2000 relating to certain legal aspects of the services of the company of information, and in particular of the electronic trade, in the domestic market («  directive on the electronic trade  ») (hereafter quoted «First report/ratio on the application of the directive on the electronic trade»), November 21, 2003, COM (2003) 702 final, Commission of the European Communities, p. 22, on line on  : europa < http://europa.eu.int/eur-lex/fr/com/rpt/2003/com2003_0702fr01.pdf > (site visited on January 15, 2004).

* ²²⁶ Bill N° 3143 on the company of information (LSI), recorded with the Presidency of the French National Assembly on June 14, 2001, on line on  : Site of the French National Assembly < http://www.assemblee-nat.fr/projets/pl3143.asp > (site visited on March 13, 2004).

* ²²⁷ Project LEN (above mentioned, note 17) was modified in first reading by the Senate, June 26, 2003. It was then sent in second reading to the French National Assembly where it was adopted on January 8, 2004 (Bill n°235). It, thereafter, was returned in second reading in front of the Senate which will discuss it in equal Joint Committee on April 27, 2004, on line on  : Site of the French French National Assembly < http://www.assemblee-nat.fr/12/dossiers/economie_numerique.asp > (site visited on March 13, 2004).

* ²²⁸ J-P. RAFFARIN, COp cit., note 1  ; GOVERNMENT, Plane RE/SO 2007, on line on  : The action of the State for the development of the company of information < http://www.internet.gouv.fr/rubrique.php3?id_rubrique=61 > (site visited on March 13, 2004).

* ²²⁹ Project LEN, above mentioned, note 17.

* ²³⁰ Bill on the electronic communications and the services of audio-visual communication, on line on  : The action of the State for the development of the company of information < http://www.internet.gouv.fr/article.php3?id_article=968 > (site visited on March 13, 2004).

* ²³¹ Project LEN, above mentioned, note 17.

* ²³² The new bill repeals chapter VI of the Law of September 30, 1986 relating to the freedom of communication (above mentioned, note 17). It is about the treating chapter of the responsibility for the technical people receiving benefits.

* ²³³ See the sites of associations IRIS, the Odebi League, Forum Internet and the ADIJ.

* ²³⁴ Directive on the trade electronic, above mentioned, note 176.

* ²³⁵ Project LEN, above mentioned, note 17, art 43-9.

* ²³⁶ See the article criticizes of Thibault VERBIEST, «  Bill for confidence in the numerical economy  : analyze critical  », Com. Com. électr. February 2003. Com. n°4, 9  ; Fabien LESORT and Laurent SZUSKIN, Comment of the bill on the Numerical Economy, January 29, 2003, on line on  : Right and New Technologies < http://www.droit-technologie.org/1_2.asp?actu_id=714 > > (site visited on March 13, 2004).

* ²³⁷ Project LEN, above mentioned, note 17, art 43-9-1.

* ²³⁸ See article of Estelle DUMONT, Responsibility for the shelterers  : the polemic is revived, January 17, 2003, on line on  : < http://www.zdnet.fr/actualites/internet/0,39020774,2128916,00.htm > (site visited le13 March 2004).

* ²³⁹ Arnaud DEVILLARD, world Internet chahute the law on the numerical economy, February 19, 2003, on line on  : < http://www.01net.com/article/201958.html > (site visited on March 13, 2004).

* ²⁴⁰ Project LEN, above mentioned, note 17, art 1st III.

* ²⁴¹ Estelle DUMONT, Supervision of the SCA on Internet  : cultural lobbies stronger than Nicole Fountain, March 6, 2003, on line on  : < http://www.zdnet.fr/actualites/internet/0,39020774,2131532,00.htm > (site visited on March 13, 2004).

* ²⁴² Project LEN, above mentioned, note 17, art 43-11  ; See the Guillaume and Al, the HEARTH OF COSTIL, Synthesis of the round Table  : «  Project LEN  : advanced and uncertainties  », June 25, 2003, on line on  : < http://www.adij.asso.fr/V3/fr/len.htm > (site visited on March 13, 2004)  : The round Table had implied that the Senate would confirm the position of the French National Assembly on the important exemption brought to the principle of the European Directive according to which the technical people receiving benefits could not see themselves imposing a general obligation of monitoring  : «  However, the people mentioned to the 2 implement the means in conformity with the state of the art to prevent the data dissemination constitutive of the infringements aimed to the fifth and eighth subparagraphs of article 24 of the law of July 29, 1881 on the freedom of the press and to article 227-23 of the penal code  ». However, the version of Project LEN such as adoptee by the Senate in first reading, confirms well on the other hand the suppression of this exemption. However, it would seem that the French National Assembly wants this exemption absolutely since she reintegrated it in the version adopted in second reading and presented second once in front of the Senate.

* ²⁴³ CONFERENCE FOR THE HARMONIZATION OF THE LAWS IN CANADA, Comments of the uniform Law on the electronic trade, 1999, on line on  : < http://www.law.ualberta.ca/alri/ulc/findex.htm > (site visited on March 13, 2004).

* ²⁴⁴ Standard law of the CNUDCI on the electronic trade, on line on  : < http://www.uncitral.org/french/texts/electcom/ml-ecomm-f.htm > (site visited on March 13, 2004).

* ²⁴⁵ The standard Law inspired by many legislations such as the United States, Australia and the United Kingdom.

* ²⁴⁶ «  The minimalism answers at the speed of the evolution of technology  ; the more one prescribes the means in detail, the more one risks an obsolete law before his passage  : Matter of John D. GREGORY, the standard Law of the United Nations on the electronic trade  : some essential questions, draw from the article of Serge KABLAN, Regulation of information technologies in Quebec  : the philosophy of the bill 161 compared to the Canadian right  », n°1, flight 7, Lex Electronica, on line on  : < http://www.lex-electronica.org/articles/v7-1/Kablan.htm > (site visited on March 13, 2004).

* ²⁴⁷ Electronic Act Transactions, S.B.C. 2001, c.10.

* ²⁴⁸ Law of 2000 on the electronic trade, L.O. 2000, C. 17.

* ²⁴⁹ Sunny HANDA, Claude MARSEILLES and Martin SHEEHAN, E-trade legislation and materials in Canada  : Laws on the electronic trade in Canada and documents related, Ontario, Butterworths Editions, 2002, foreword statement.

* ²⁵⁰ Id., p.135.

* ²⁵¹ Cf notes 113.

* ²⁵² Law concerning the legal framework of information technologies, L.R.Q. 2001, c.32. (quoted hereafter «  LCJTI  »). It was sanctioned on June 21, 2001 and it came into effect on November 1, 2001.

* ²⁵³ Matter of Me Jeanne PROULX, draw from the article of Indragandhi BALASSOUPRAMANIANE, «  Law concerning the legal framework of information technologies  : a different approach  » (2001) 33 J.duB n°21.

* ²⁵⁴ See the parliamentary debates of the LCJTI.

* ²⁵⁵ Directive on the trade electronic, above mentioned, note 176  ; Pierre TRUDEL, the responsibility on Internet, Right Seminar and Fabric, Bamako, May 27, 2002, p.8.

* ²⁵⁶ LCJTI, above mentioned, note 252, art 22, 26, 27, 36 and 37.

* ²⁵⁷ Id., art 22, Al 3.

* ²⁵⁸ Id., art 27.

* ²⁵⁹ The standard of CNUDCI, above mentioned law, note 244.

* ²⁶⁰ CONFERENCE FOR THE HARMONIZATION OF THE LAWS IN CANADA, above mentioned, note 243.

* ²⁶¹ Michel RACICOT and A., Study of the comparative responsability to the contents circulating on Internet, 1997-03-12, Canada Industry, on line on  : < http://strategis.ic.gc.ca > (site visited on March 13, 2004).

* ²⁶² D.C.Q., art 1457 and C.civ., art 1382 (above mentioned, note 166) and 1383 of the same code (above mentioned, note 167). See S. Perathoner, co. Pmbe, co. Midday Music, Trade union of the Data-processing Producers of Sound records, co. of the Authors and Type-setters and Editors of Musics C.J. Paumier, co. Free and others, TGI Paris, 3rd CH., 1st sect., May 23, 2001, Com. Com. électr. 2001. Com. n°112, p. 21.

* ²⁶³ D.C.Q., art 1465 and C.civ., 1384 subparagraph 1  : «  One is responsible not only damage which one causes by his characteristic made, but still of that which is caused by the fact of the people which one must answer, or of the things that one has under his guard  ».

* ²⁶⁴ Lacoste C. SA Multimania Production and A., above mentioned, note 159  ; CA Paris (14th CH.), February 10, 1999, J.C.P., E, 1999, p.953, n°21, obs. Mr. LIVING and C. the STANC  ; Mr. SANTIAGO CAVANILLAS, COp cit., note 214, p.44  : the Court of Appeal of Paris of February 10, 1999 worked out «  a reasoning inspired by the theory of the risks  ».

* ²⁶⁵ Law of August 1, 2000, above mentioned, note 17.

* ²⁶⁶ See the note of the authors Gerard HAAS and Olivier TISSOT, loc. cit., note 200, 24-25  : the responsibility for common right does not apply any more to the litigations born between the thirds and the suppliers of lodging because of the contents of a lodged site.

* ²⁶⁷ LCJTI, above mentioned, note 252.

* ²⁶⁸ C. civ., above mentioned, note 37.

* ²⁶⁹ D.C.Q, above mentioned, note 37.

* ²⁷⁰ L. GRYNBAUM, loc. cit., note 171, 15.

* ²⁷¹ D.C.Q, art 1474.

* ²⁷² Concept used in French right which joined the concept of «  nobody reasonably careful and diligent  ». See Josée PAYETTE and A., «  Extracontractuelle civil liability  », in Collection of right 2002-2003, School Bar of Quebec, vol.4, Responsibility, Cowansville, Editions Yvon Blais, 2002, p.1, on page 24-23.

* ²⁷³ A. LEPAGE, «  The responsibility for the suppliers of lodging and the suppliers of access to the Internet  : a new challenge for the justice of XXIe century  ?  », loc. cit., note 194, 15.

* ²⁷⁴ See LCJTI, above mentioned, note 252, art 22 Al 3.

* ²⁷⁵ For more information  : See the article of Cyril ROJINSKY, Sens prohibits- the responsibility for the creator of hypertext link because of the illicit contents of the target site, December 17, 2002, on line on  : Juriscom.net < http://www.juriscom.net > (site visited on March 13, 2004).

* ²⁷⁶ New French Penal code, art 121-7 Al 1.

* ²⁷⁷ See the text of Francine AUMUELLER, «Haste propaganda law and Internet-based hastens», (Oct. 2000) 44 Crim. L.Q. 92-107: Is necessary it to amend the criminal Code to set up such a responsibility  ? and Jeff BRUNNER, «Canada' S uses off criminal and human rights legislation to control hastens propaganda», (1999) 26 Man. L.J. 299-317.

* ²⁷⁸ Law of August 1, 2000, above mentioned, note 17.

* ²⁷⁹ The European Directive exonerates as well of civil liability as penal  : See T. VERBIEST and E. WERY, Right of the Internet and the company of information  : European rights, Belgian and French, COp cit., note 11, p.220.

* ²⁸⁰ Project LEN, text modified by the Senate, June 26, 2003, on line on  : Site of the French French National Assembly < http://www.assemblee-nat.fr/12/projets/pl0991.asp > (site visited on March 13, 2004).

* ²⁸¹ See the article Cyril ROJINSKY, Sens prohibits- the responsibility for the creator of hypertext link because of the illicit contents of the target site, loc. cit., note 274.

* ²⁸² Project LEN, above mentioned, note 17, art 43-10  ; for more information  : N°608 report/ratio of Mrs. Mr. TABAROT, COp cit., note 201.

* ²⁸³ Law of July 29, 1881 on the freedom of the press, above mentioned, note 54, art 42  ; for more information  : Carole GUERNALEC, contents illicit on Internet  : prevention, responsibility, repression, Paris, January 2002, on line on  : < http://www.cpu.fr/dossier/webuniversites/internet_responsabilite_exposeV2.pdf > (site visited on March 13, 2004).

* ²⁸⁴ Law n°85-1317 of December 13, 1985 relating to the audio-visual communication, art 93-2 and 93-3, on line on  : Legifrance < http://www.legifrance.gouv.fr/ > (site visited on March 13, 2004).

* ²⁸⁵ See the following authors  : P. TRUDEL and A., Right of the cyberspace, COp cit., note 115, p. 5-3 to 5-6   ; ALIVE Michel, «  The responsibility for the intermediaries of the Internet  », J.C.P. ED. G.1999. I. 180  ; N°608 report/ratio of Mrs. Mr. TABAROT, COp cit., note 201  ; SANTIAGO CAVANILLAS, COp cit., note 214, p.37.

* ²⁸⁶ The supplier of lodging of personal pages cannot be regarded as a director of the publication  : TGI Puteaux, September 28, 1999. See also the Code of the communication (Paris, Dalloz, 2001, p.263).

* ²⁸⁷ Vincent FANCHOUX, French FAI vis-a-vis the illicit contents out of France, August 2001, on line on  : The Newspaper of the Net < http://www.journaldunet.com/juridique/juridique010828.shtml > (site visited on March 13, 2004).

* ²⁸⁸ SANTIAGO CAVANILLAS, COp cit., note 214, p.37.

* ²⁸⁹ ALIVE Mr., «  The responsibility for the intermediaries of the Internet  », loc. cit., note 285.

* ²⁹⁰ Id.  : Expression taken of professor ALIVE M.

* ²⁹¹ Mr. CAHEN, loc. cit., note 185.

* ²⁹² Conseil IARD CENTERED and CENTERED the Council Life C. Mr Christophe Mr., Mr Christophe Sapet, Chairman of the board of the Infonie company, TGI Puteaux, 28/09/1999, on line on  : Juriscom.net < http://www.juriscom.net/txt/jurisfr/cti/resum.htm#axa > (site visited on March 13, 2004).

* ²⁹³ Pierre-François DOCQUIR, Control of the contents on Internet and freedom of expression within the meaning of the European Convention of the humans right, May 2002, on line on  : Right and New technologies < http://www.droit-technologie.org > (site visited on March 13, 2004). The content provider covers several realities  : S. MARCELLIN and L. COSTES, COp cit., note 161, n°2797, p.1581  ; V. SÉDALLIAN, Right of the Internet  : regulation, responsibility, contracts, COp cit., note 107, p. 113.

* ²⁹⁴ T. VERBIEST and E. WERY, right of the Internet and the company of information  : European rights, Belgian and French, COp cit., note 11, p.214.

* ²⁹⁵ Lionel BOCHURBERG, Internet and electronic trade  : Web site, contracts, responsibility, dispute, 2nd edition, Paris, DELMAS-DALLOZ, 2001, p. 234.

* ²⁹⁶ A. HAMON, COp cit., note 5, p. 102.

* ²⁹⁷ It should be noticed that the words employed are always the same ones  : «  the responsibility for the person receiving benefits... cannot be committed... in condition...  ». The authors in the work Trades electronic  : the time of certainty (Mr. and A., SANTIAGO CAVANILLAS, COp cit., note 214, p.38), states that the European legislator devotes a principle of  «  conditioned irresponsibility  » or of «  moderate immunity  ».

* ²⁹⁸ European directive on the trade electronic, above mentioned, note 176, art 12 and 13 and LCJTI, above mentioned, note 252, art 36 and 37.

* ²⁹⁹ Id., art 14 and considering 46  ; Id., art 22 Al 2 and Project LEN, above mentioned, note 17, art 43-8.

* ³⁰⁰ Trinomial advanced by the European Commission in its communication on the contents illegal and prejudicial on Internet of October 16, 1996 (COM (96) 487)  ; defended by the report/ratio of the Council of State on Internet and the networks numerical (French documentation, 1998, p.185, on line on  : < http://archives.internet.gouv.fr/affichage.php?val=/francais//textesref/rapce98/accueil.htm >)  ; and begun again by many authors such as ALIVE Mr., «  The responsibility for the intermediaries of the Internet  », loc. cit., note 285  ; S. MARCELLIN and L. COSTES (to dir.), COp cit., note 161, n°2810 and suiv., p.1586 and Mr. CAHEN, loc. cit., note 185.

* ³⁰¹ These conditions are necessary but not sufficient  : ALIVE Mr., Id., p. 2023 and Mr. CAHEN, Id.

* ³⁰² Judgments which did not retain the responsibility for the PSI because of their initiative to withdraw litigious information  : Jean-Marie the PEN C. limited liability company Ccmb Kilikopela, Tiscali, Sebastien C., TGI Paris, ord. ref., January 17, 2003, Com. Com. électr. May 2003. Com. n°50, p.31, note Luc GRYNBAUM  ; and SA Ciriel and Mr. F.C. SA Free, above mentioned, note 203, p.30  ; N°608 report/ratio of Mrs. Mr. TABAROT, COp cit., note 201  : «  response of reason based on the idea that «  only that is faulty which is able to intervene, knows that there are grounds for to intervene and does not do anything  ».

* ³⁰³ 776 F. Supp. 135 (SDNY 1991)  ; in another business Religious Technology Center v. Netcom Online Communication Services Inc. (907 F. Supp. 1361 (ND Cal.1995)), the judge retained the responsibility for the person receiving benefits who remained inactive following the complaint of a third which asked for the withdrawal of information  : to see ALIVE Mr., «  The responsibility for the intermediaries of the Internet  », loc. cit., note 285, 2024.

* ³⁰⁴ V. Lacambre E.C. Lefèbure-Hallyday, above mentioned, note 157 and ALIVE Mr., Id.  : «  the ordinance illustrates perfectly and fortunately the triptych «  to be able- to know- inertia  ».

* ³⁰⁵ See for more information  : L. GRYNBAUM, loc. cit., note 171, 15.

* ³⁰⁶ The ALIVE professor states in his article entitled «  The responsibility for the intermediaries of the Internet  » (loc. cit., note 285, 2024) that the tryptique one «  to be able- to know- inertia  » is only one guide of reason to be followed for the implementation of the common right  ; See too  : Mr. and A., SANTIAGO CAVANILLAS, COp cit., note 214, p.38.

* ³⁰⁷ A. LEPAGE, «  The responsibility for the suppliers of lodging and the suppliers of access to the Internet  : a new challenge for the justice of XXIe century  ?  », loc. cit., note 194, 16.

* ³⁰⁸ P. TRUDEL, the responsibility on Internet, loc. cit., note 255.

* ³⁰⁹ P. TRUDEL, «  Responsibilities in the cyberspace  », in T. FUENTES-CAMACHO (to dir.), COp cit., note 36, p. 235, on page 247 and suiv.

* ³¹⁰ Stratton Oakmont Inc. C. Prodigy Services Co., [1995] New York (Quicklaw) Index n°31063/94 (Sup. Ct.): it is about the first judgment which showed the exercise from a certain leading control by a supplier from services, and to thus recognize a role of editor to him to found his responsibility.

* ³¹¹ Directive on the trade electronic, above mentioned, note 176, art 14.

* ³¹² N°608 report/ratio of Mrs. Mr. TABAROT, COp cit., note 201.

* ³¹³ There is no presumption of knowledge of the contents of the sites lodged by the supplier. He can to him be reproached only the fact of being unaware of that the domain name and the address of the litigious site were exclusively made up of the servile reproduction of an original mark  : See decision of the TGI Paris, March 24, 2000 relating to the application of the Law of August 1, 2000 on the freedom of communication in the Code of the communication (above mentioned, note 286). The obligations put at the load of the shelterer must remain, as the judgment of the TGI of Nanterre of December 8, 1999 underlined it (above mentioned, note 159), about «  reasonable measurements  «that one can require of one»  advised professional  «, and it is completely normal that a technical person receiving benefits appreciates the illicit character of contents»  taking into consideration its own competence  «.

* ³¹⁴ N°608 report/ratio of Mrs. Mr. TABAROT, COp cit., note 201.

* ³¹⁵ P. TRUDEL, «the responsibility for the actors electronic commercial  », in Vincent GAUTRAIS (to dir.), Right of the electronic trade, Montreal, the THEMIS editions, 2002, p. 607, on page 631  ; See the note of Luc GRYNBAUM, «  The United States  : immunity for eBay, organizer of bidding, having accommodated defamatory remarks  », Com. Com. électr. June 2003, Com. n°61  : the company eBay is seen granting an immunity of responsibility for the remarks made on the forum for discussion that it created because it is satisfied to convey information.

* ³¹⁶R.C. Jorgensen, [1995] 4 R.C.S. 55: The Court points out the distinction between articles 163 (1) and (2) of the criminal Code i.e. between the producer or the distributer and the salesman. Indeed, one can suppose that the producer and the distributer know the contents of the material which they create or distribute to the difference of the salesman who cannot know the contents of all that it sells  ; P. TRUDEL and others, Right of the cyberspace, COp cit., note 115, p. 5-24; P. TRUDEL, «responsibilities in the cyberspace», loc. cit., note 309, p. 235, on page 253.

* ³¹⁷ Directive on the trade electronic, above mentioned, note 176, art 14  ; LCJTI, above mentioned, note 252, art 22 and Project LEN, above mentioned, note 17, art 43-8.

* ³¹⁸ Well-known concept in French right to the difference in this new concept of «  promptitude  »  : N°608 report/ratio of Mrs. Mr. TABAROT, COp cit., note 201.

* ³¹⁹ A. LEPAGE, «  The responsibility for the suppliers of lodging and the suppliers of access to the Internet  : a new challenge for the justice of XXIe century  ?  », loc. cit., note 194, 15. The supplier of lodging becomes responsible only if it did not carry out diligences necessary after being informed (for facts of denigrations on a forum of discussion: TGI Paris, ref., February 18, 2002, Com. Com. électr. 2002. Com. n°102; TGI Toulouse, ref., June 5, 2002, Com. Com. électr. 2002. Com. n°118; for an illicit site: TGI Paris, ord. ref., January 17, 2003, Com. Com. électr. 2003. Com. n°50).

* ³²⁰ The responsibility for the supplier of lodging cannot be committed since it A acts promptly by closing the site or by withdrawing litigious information  : Cubby v. CompuServe, above mentioned, note 303  ; Religious Technology Center v. Netcom Online Communications Services Inc. (above mentioned, note 303)  : Netcom was made responsible by its inaction which was equivalent to a substantial participation in the illegal distribution of the material  ; Jean-Marie the PEN C. limited liability company Ccmb Kilikopela, Tiscali, Sebastien C., above mentioned, note 302  : by withdrawing a site at the request of the third victim of the illicit contents, the supplier of lodging guards himself against any responsibility  ; SA Ciriel and Mr. F C. SA Free, above mentioned, note 203  : closing of a comprising site of the defamatory remarks on the initiative clean of the shelterer.

* ³²¹ LCJTI, above mentioned, note 252, art 27; Project LEN, above mentioned, note 17, art 43-11 and Directive on the trade electronic, above mentioned, note 176, art 15  : this text must be also read with considering 47 which states that this absence of obligation of general monitoring does not prevent that the States set up obligation specific of monitoring and it considering 48 which makes it possible to impose an obligation of monitoring on the load of the service providers if it is defined by the law.

* ³²² Mr. CAHEN, loc. cit., note 185.

* ³²³ A. STROWEL, NR. IDE, and F. VERHOESTRAETE, loc. cit., note 207, 142  : It is by concern of safeguarding the freedom of expression and of avoiding the preliminary censure.

* ³²⁴ See the explanations notes 242  : the French National Assembly imposes a certain monitoring on behalf of the PSI. This provision it will be or not removed by the Senate in second reading  ?

* ³²⁵ P. TRUDEL, the responsibility on Internet, loc. cit., note 255, p.19.

* ³²⁶ Mr. and A., SANTIAGO CAVANILLAS, COp cit., note 214, p.37.

* ³²⁷ The companies can call upon a single person receiving benefits called the ASP (translated «  supply of lodged applications  ») whose activity consists in proposing services applicatifs on line in rental mode  : Janice DERVAUX and Thibault VERBIEST, the ASP develop  : review of the obligations of the person receiving benefits, March 2003, on line on  : Right and New technologies < http://www.droit-technologie.org/1_2_1.asp?actu_id=723 > (site visited on March 13, 2004).

* ³²⁸ Directive on the trade electronic, above mentioned, note 176, art 12 (1) and LCJTI, above mentioned, note 252, art 36 Al 1.

* ³²⁹ This principle of neutrality forces the operators of telecommunication to transpose any message without discrimination  : art. L.32.1 of the Code of the stations and telecommunications and art 31 and 36 of the Law on telecommunications (L.C. 1993, c.38)  ; Chastain C. British Columbia Hydro & Power Authority, [1973] 2 W.W.R. 481  : they have the obligation to transport any message without discrimination as for the contents nor as for the person who dispatches it.

* ³³⁰ S. MARCELLIN and L. COSTES (to dir.), COp cit., note 161, n°2817 and S., p.1590.

* ³³¹ These PSI have an obligation of abstention: A. STROWEL, NR. IDE, and F. VERHOESTRAETE, loc. cit., note 207, p.143.

* ³³² Directive on the trade electronic, above mentioned, note 176, art 12 and LCJTI, above mentioned, note 252, art 36 Al 2  ; See for more information  : P. TRUDEL, the responsibility on Internet, loc. cit., note 255, p.27.

* ³³³ Id.  ; SANTIAGO CAVANILLAS, COp cit., note 214, p.39.

* ³³⁴ S. MARCELLIN and L. COSTES (to dir.), COp cit., note 161, n°4658, p.688.

* ³³⁵ They are also subjected to the principle of neutrality  ; See T. VERBIEST and E. WERY, right of the Internet and the company of information  : European rights, Belgian and French, COp cit., note 11, p.220 and V. FAUCHOUX, loc. cit., note 287.

* ³³⁶ Directive on the trade electronic, above mentioned, note 176, Considering 44  ; See too  : A. STROWEL, NR. IDE, and F. VERHOESTRAETE, loc. cit., note 207, 142.

* ³³⁷ Directive on the trade electronic, above mentioned, note 176, art 12 and LCJTI, above mentioned, note 252, art 36.

* ³³⁸ A. LEPAGE, «  The responsibility for the suppliers of lodging and the suppliers of access to the Internet  : a new challenge for the justice of XXIe century  ?  », loc. cit., note 194, 16 and S. MARCELLIN and L. COSTES (to dir.), COp cit., note 161, n°2818, p.1590.

* ³³⁹ Id.

* ³⁴⁰ V. SÉDALLIAN, the responsibility for the technical people receiving benefits on Internet in the digital millenium American copyright act and the European draft Directive on the electronic trade, loc. cit., note 214  ; Mr. and A., SANTIAGO CAVANILLAS, COp cit., note 214, p.46  ; P. TRUDEL, the responsibility on Internet, loc. cit., note 255, p.28.

* ³⁴¹ Directive on the trade electronic, above mentioned, note 176, art 13  ; LCJTI, above mentioned, note 252, art 37 and Projet LEN, above mentioned, note 17, art 4  ; See also  : P. TRUDEL, Id., p.30.

* ³⁴² T.VERBIEST, Bill for confidence in the numerical economy  : analyze critical, loc. cit., note 236, 12  ; T. VERBIEST and E. WERY, right of the Internet and the company of information  : European rights, Belgian and French, COp cit., note 11, p.221.

* ³⁴³ Directive on the trade electronic, above mentioned, note 176, art 12 Al 3.

* ³⁴⁴ SANTIAGO CAVANILLAS, COp cit., note 214, p.47.

* ³⁴⁵ The same applies to the simple conveyer and the supplier of lodging in article 14 Al 3 of the Directive on the electronic trade (above mentioned, note 176).

* ³⁴⁶ Lacoste C. SA Multimania Production and A., above mentioned, note 159.

* ³⁴⁷ Directive on the trade electronic, above mentioned, note 176, art 14  ; LCJTI, above mentioned, note 252, art 22 and Project LEN, above mentioned, note 17, art 43-8.

* ³⁴⁸ Directive on the electronic trade, art 14 Al 2  ; See too  : SANTIAGO CAVANILLAS, COp cit., note 214, p.44 and P. TRUDEL, the responsibility on Internet, loc. cit., note 255, p.20.

* ³⁴⁹ SANTIAGO CAVANILLAS, Id., p.46.

* ³⁵⁰ A. LEPAGE, «the responsibility for the suppliers of lodging and the suppliers of access to the Internet  : a new challenge for the justice of XXIe century  ?«, loc. cit., note 194, 15  ; N°608 report/ratio of Mrs. Mr. TABAROT, COp cit., note 201  : the provisions of the Law of August 1 2000 pose a principle of irresponsibility of the shelterers since they should not only submit with the injunctions of justice. They are held by no other type of vigilance.

* ³⁵¹ Law of August 1, 2000, above mentioned, note 17, art 43-8.

* ³⁵² The hyperlinks are the connection connecting of the resources accessible by communication networks (for example Internet network). They are in particular made up of the following, visible elements or not for the user: active element or activable (the pointer), addresses destination, conditions of presentation of the dependant resource  : Definition taken of THE RECOMMENDATION OF THE FORUM OF THE RIGHTS ON THE INTERNET, Which responsibility for the creators for hyperlinks towards the illicit contents  ? , October 23, 2003, on line on  : The Forum of the rights of the Internet < http://www.foruminternet.org/telechargement/documents/reco-resphyli-20031023.pdf > (site visited on March 13, 2004).

* ³⁵³ A directory is a list of sites laid out according to categories and subcategories'. Each site, to appear in the data base, must be recorded beforehand by the means of a form, indicating a title, a short description and key words relating to the document. It is not a question of an automatic indexing carried out by a robot but of a human and voluntary referencing  : definition taken with Thibault VERBIEST and Etienne WERY, the responsibility for the suppliers of tools of research and hyperlinks because of the contents for the sites referred, 2001, p.6, on line on  : right and new technologies < http://www.droit-technologie.org > (site visited on March 13, 2004).

* ³⁵⁴ Id.  : A search engine is a software of exploration which visits uninterrupted the Web pages and the indices of manner automatic in a data base according to the key words that they contain.

* ³⁵⁵ Promulgated law on October 21, 1998 by the American Congress.

* ³⁵⁶ LCJTI, above mentioned, note 252, art 22 Al 3.

* ³⁵⁷ Murielle CAHEN, the responsibility for the tools of research, November 29, 2002, on line on  : < http://www.clic-droit.com/web/editorial/dossier.php?dossier_id=26 > (site visited on March 13, 2004).

* ³⁵⁸ See for more information the text of ALIVE Mr. entitled «  The responsibility for the technical intermediaries of the Internet  », loc. cit., note 285; Michel LIVING and Christian the Right STANC (to dir.), Lamy of data processing and the networks, Paris, Lamy, 2002, N  2811, p. 1587 and Mr. CAHEN, the civil liability for the suppliers of access, loc. cit., note 185.

* ³⁵⁹ See A. LEPAGE, «  The responsibility for the suppliers of lodging and the suppliers of access to the Internet  : a new challenge for the justice of XXIe century  ?  », loc. cit., note 194, 16.

* ³⁶⁰ Expression borrowed from the speech of French the Prime Minister Jean-Pierre Raffarin with the EBG, See ASSOCIATION TO LIVE the NET, the suppliers of access and shelterers will be judges of the contents of the Internet, November 13, 2002, on line on  : News Food the Net < http://www.vivrele.net/node/900.html > (site visited on January 15, 2004).

* ³⁶¹ Expression borrowed from G. and Al, the HEARTH OF COSTIL, COp cit., note 242.

* ³⁶² ASSOCIATION FOOD the NET, the suppliers of access and shelterers will be judges of the contents of the Internet, loc. cit., note 360.

* ³⁶³ It is thus put at the load of these people receiving benefits one «  obligation of qualification of the contents  »  : F. LESORT and L. SZUSKIN, loc. cit., note 236.

* ³⁶⁴ «  The article [43-8], like the directive, invest the shelterer of a mission which is not simple to exert, while requiring of him to appreciate, whereas it is neither professional right nor a magistrate, the admissibility of the contents which it lodges  »  : N°608 report/ratio of Mrs. Mr. TABAROT, COp cit., note 201.

* ³⁶⁵ Mr. LIVING and C. the STANC (to dir.), COp cit., note 358, n°2814, p. 1589.

* ³⁶⁶ That will be much easier for the contents whose illiceity is obvious or obviously illicit (such as for example the sites paedophiles)  : SANTIAGO CAVANILLAS, COp cit., note 214, p. 44 to 46; A. LEPAGE, «  The responsibility for the suppliers of lodging and the suppliers of access to the Internet  : a new challenge for the justice of XXIe century  ?  », loc. cit., note 194, 17  ; G. and Al, the HEARTH OF COSTIL, COp cit., note 242.

* ³⁶⁷ The PSI «  is not safe from an error in all good faith. However, without prejudging quality of the aforesaid people receiving benefits, it is strong to bet that some of them will make time with other of the errors of appreciation which will lead to not justified suppressions, thus calling the lightnings of their customers while at the same time their only objective would be to satisfy the requirements of the law; on another side they could be brought in all good faith to continue to lodg contents prejudicial but on which they will not be able to appreciate reality in practice (in the event of counterfeit for example)  »  ; Matter of Eric BARBRY, the bill relating to the numerical economy screened, January 14, 2003, on line on  : The Newspaper of the Net < http://www.journaldunet.com/juridique/juridique030114_1.shtml > (site visited on January 15, 2004).

* ³⁶⁸ A. DEVILLARD, loc. cit., note 239.

* ³⁶⁹ The Free supplier anticipated the application of the Project of LEN while being authorized to cut the subscription of a user on simple notification of having the right. Moreover, 95% of the Net surfers yield to the pressure of a warning when the contents are considered to be illicit. The Net surfers seem to be afraid of the gendarme. See the article of Estelle DUMOUT, Responsibility for the shelterers: Free for a long time anticipates the law, January 16, 2004, on line on  : ZDNet France < http://www.zdnet.fr/actualites/internet/0,39020774,39137258,00.htm > (site visited on January 15, 2004).

* ³⁷⁰ A. LEPAGE, «  The responsibility for the suppliers of lodging and the suppliers of access to the Internet  : a new challenge for the justice of XXIe century  ?  », loc. cit., note 194, 16  : «  The damage made on the Internet can be fulgurating, and an immediate reaction of the shelterer will be thus the welcome to counter illicit the, even if it means one to then await of the judge a confirmation of measurement  ».

* ³⁷¹ Project LEN, above mentioned, note 227, art (à), I8-  : «  The legal authority can prescribe in summary procedure or on request, with any person mentioned to the 1 and 2 (technical people receiving benefits), all measurements suitable to put an end to a damage caused by the contents of a service of public communication on line, such as those aiming ceasing storing these contents or, failing this, at ceasing giving access of them  ».

* ³⁷² N°608 report/ratio of Mrs. Mr. TABAROT, COp cit., note 201. To specify, the judge will intervene all the times where the shelterer will miss with his duty withdrawal in order to sanction the failures of this last, but also to ensure its protection, if it is confronted with an abusive request for withdrawal on behalf of a Net surfer.

* ³⁷³ E. DUMONT, Responsibility for the shelterers  : the polemic is revived, loc. cit., note 238.

* ³⁷⁴ The censure is defined as the authorization preliminary given by a government to the publications, with the spectacles... the censure is thus a control before publication, a political act a priori  ; See the article of Y. BISMUTH, COp cit., note 181, p. 172.

* ³⁷⁵ For the author Jean-François THÉRY (to finish of it good once for all with the censure, Paris, the editions of the Stag, 1990, p. 181), the censure «  consolidate me in the idea that total prohibition, in a company like ours, is ultimately a dangerous weapon  ».

* ³⁷⁶ For the authors T. PIETTE-COUDOL and A. BERTRAND, (COp cit., note 138, p. 113), there is a world wave of prudery which extends on the network with the censure.

* ³⁷⁷ For example, the sites paedophiles are in clear increase (+46%) according to Association Shield whereas the National Criminal Intelligence English Service for its part announces an increase of more than 64%. (See for more details the site of Association Shield  : < http://www.bouclier.org/ > and < http://www.ncis.co.uk/ >). Moreover, 52% of these sites are located in North America with a worrying increase in Europe.

* ³⁷⁸ The censure is thus the solution most retained by the countries that they are democratic or not. Of course, it is carried out to differing degrees but the effects are the same ones  : there is an attack with the freedom of expression. See REPORT/RATIO OF REPORTERS WITHOUT BORDERS, Internet under monitoring  : Obstacles with the information flow on the network, 2003, on line on  : RFS < http://www.rsf.fr/IMG/pdf/doc-2233.pdf > (site visited on January 15, 2004).

* ³⁷⁹ Indeed, 80% of the young people were exposed to pornographic sites and most of the time in a hazardous way.

* ³⁸⁰ Some of these contents are also accessible on other supports such as television and the satellite. However, they do not cause as much passion than Internet network. According to author J-F. THÉRY in its work «  To finish of them good once for all with the censure, (COp cit., note 375, p. 40 and 41), one claims the censure to protect the others. (...) That which whether extremely asks the censure for the others, actually does not require it of the authorities to impose on the others its own values, in order to be sure that it is in the good way  ? (...) Ultimately do not ask it protection against the difference, pluralism, the tolerance, which dilutes the certainty relativize the values, and thus ruin safety  ?  ». In short, those which require the censure seem to want that the company adopts their personal opinions and thus to withdraw all information which disturbs them. For the moment, we do not know the impacts nor the effects which produce the illicit contents on the behavior of the young people. At this point in time the following question can legitimately arise  : We do not take the pretext of the brittleness of the minors to censure information which obstructs us  ? (See P. JOUGLEUX, COp cit., note 92, p. 76 and suiv.) this Is truly the ideal solution  ? Is necessary it to censure the virtual world more that the real world  ?

* ³⁸¹ A. LEPAGE, «  The responsibility for the suppliers of lodging and the suppliers of access to the Internet  : a new challenge for the justice of XXIe century  ?  », loc. cit., note 194, 16.

* ³⁸² Project LEN, above mentioned, note 227, art (à), I-4.

* ³⁸³ T. VERBIEST, and E. WÉRY, «  The responsibility for the suppliers of services Internet  : last jurisprudential developments  », loc. cit., note 161, 170.

* ³⁸⁴ Project LEN, above mentioned, note 227.

* ³⁸⁵ See the sites of various associations  : Iris, Odebi, Reporters without border, Food the Net... They express sharp a dissatisfaction against this bill. The majority call with the boycottings, the petitions or to express its distress vis-a-vis this text. The Association of the Suppliers of Access (AFA) also protests against this law because she does not want to find herself to make the «gendarme» on her waiters. Moreover, it should be stressed that the French deputies receive pressures of the Industry of the disc which would wish to track the illegal files and to make thus responsible the suppliers and, failing to attack the private individuals. All these external pressures push the legislator to be tried to find the best area of agreement knowing than it does not have the choice to transpose the Directive on the electronic trade (above mentioned, note 176).

* ³⁸⁶ See also   Philippe CROUZILLACQ, the SCA he will control Internet  ? , 26/02/2003, on line on  : 01net. < http://www.01net.com/article/202519.html >; Jerome THOREL, the law on the numerical economy adopted in first reading by the Parliament, February 27, 2003, on line on  : ZDNet France < http://www.zdnet.fr/actualites/business/0,39020715,2131170,00.htm >  ; Estelle DUMONT, Supervision of the SCA on Internet  : cultural lobbies stronger than Nicole Fountain, loc. cit., note 241.

* ³⁸⁷ In particular Association Food the Net in its article entitled Vivre the Net is opposed firmly to any general competence with the SCA to regulate Internet (Press release, 22/01/2003, on line on  : < http://www.vivrele.net/node/938.html > (site visited on January 15, 2004)). It also should be specified that many are those which considered that it was not the role of the SCA to control contents Internet. This last dealing only with the audio-visual one. According to the remarks of Claudie HAIGNERÉ, Minister delegated to Research and New Technologies, «  Internet could not be compared to a audio-visual communication, except with regard to the diffusion of radios and television on Internet  ». See the text of Jerome, THOREL, Law Fountain  : numerical economy on the way to frame the public expression, March 13, 2003, on line on  : ZDNet < http://news.zdnet.fr/story/0,,t118-s2131870,00.html > > (site visited on January 15, 2004).

* ³⁸⁸ Project LEN, above mentioned, note 227, art 1st  ; See the article of   Arnaud DEVILLARD and Guillaume DELEURENCE, Law of the Internet  : what will change, 09/01/2004, on line on  : 01net. < http://www.01net.com/article/227943.html > (site visited on January 15, 2004).

* ³⁸⁹ CRTC, the CRTC will not regulate Internet, Communiqué, May 17, 1999, Ottawa-Hull, on line on  : CRTC < http://www.crtc.gc.ca/FRN/NEWS/RELEASES/1999/R990517.htm > (site visited on January 15, 2004)  : the Council does not want to regulate the new Canadian media not to handicap this industry in the field of the competition which is exerted on a worldwide scale and thus to develop it. We can put the question to know if Industry did not make a lobbying on the CRTC to arrive at such a decision.

* ³⁹⁰ It classifies films according to the Law on the cinema, L.R.Q., C.C-18.1, art 81.

* 391 Broadcasting Services Amendment (Online Services) Act 1999 No 90, 1999.

* ³⁹² Robert CASSIUS OF LINVAL, «  Censure  : when you hold us  », (1999) 30 J.du B. n°21, on line on  : The Newspaper of the Bar < http://www.barreau.qc.ca/journal/frameset.asp?article=/journal/vol31/no21/surlenet.html > (site visited on January 15, 2004).

* ³⁹³ See James PEARCE, In Australia, the classification of the sites would be «ineffective», June 18, 2002, in lines on  : ZDNet Australia < http://news.zdnet.fr/story/0,,t118-s2112010,00.html > (site visited on January 15, 2004).

* ³⁹⁴ Jean-Marc MANACH, Australia prohibits the «adult topics», 22 Féb 2001, on line on  : tranfert.net < http://www.transfert.net/a4297 > (site visited on January 15, 2004).

* ³⁹⁵ Since the entry into force of the new Australian law, there were only six sites which were prohibited on 290 complaints. It would seem that there is much work to still make bus for the moment, they are the young people who pay the overflows of them. See Hamish FITZSIMMONS, Proposals to stop Internet porn' S reach, AM, Radio operator National, 4 Mars 2003, on line on: < http://www.abc.net.au/am/s797700.htm > (site visited on January 15, 2004). Moreover, the young people consume more «  X-rated videos  » that pornographic sites what limit the application of the Australian law of censure, as well as the foreign sites which are not subjected to this law and which also have materials of an extreme violence. See ELECTRONIC FRONTIERS AUSTRALIA RELEASE MEDIA, Censorship laws contribute to youth accesses to violent one pornography, 3 Mars 2003, on line on: < http://www.efa.org.au/Publish/PR030303.html > (site visited on January 15, 2004).

* ³⁹⁶ Michel ALBERGANTI and Stephan FOUCART, «  Internet delivered to the censure  », The World, April 8, 2003  ; See the work of Nathalie COLLARD and Pascale NAVARRO entitled Prohibited with the women  : The feminism and censure of the pornography (Quebec, Boreal, 1996)  : this last shows that more and more feminists denounce the traps of the censure. They are in favor of the existence of a multitude of speech in the company even if the price to be paid is that of the freedom of expression. Each one must be free of reading and looking at what he wants without no censure being made.

* ³⁹⁷ Id., Mr. ALBERGANTI and S. FOUCART.

* ³⁹⁸ Id., NR. COLLARD and P. NAVARRO, p. 91.

* ³⁹⁹ COMMISSION IN THE EUROPEAN PARLIAMENT, First report/ratio on the application of the directive on the trade electronic, above mentioned, note 225, p. 16.

* ⁴⁰⁰ Directive on the trade electronic, above mentioned, note 176.

* ⁴⁰¹ DMCA, above mentioned, note 214.

* ⁴⁰² It is a question of notifying with the shelterer the litigious contents. It carries out the withdrawal then. It transmits the notification to lodged which can address a against-notification to the shelterer in order to justify his position and to require the cancellation of measurements taken in its connection. If it is diligent and conforms to the notifications, its responsibility cannot be committed. Moreover, it does not have to appreciate the request of the third nor to qualify the contents in question  : See F. LESORT and L. SZUSKIN, loc. cit., note 236  ; and for more information the article of T. VERBIEST and E. WERY, «  The responsibility for the suppliers of services Internet  : last jurisprudential developments  », loc. cit., note 161, 168.

* ⁴⁰³One «  absence of precise provisions, as for the degrees of necessary knowledge in the chief of the intermediaries, as for information which the notification of a plaintiff and as for the response times must contain left to the various speakers, opens the way with many possibilities of disputes in the practices  »  : A. STROWEL, NR. IDE and F. VERHOESTRAETE, loc. cit. note 207, 144.

* ⁴⁰⁴ Law of August 1, 2000, above mentioned, note 17.

* ⁴⁰⁵ In practice, we could see that the suppliers often proceeded by prudence to the withdrawal or the suppression on simple setting in residence of a third.

* ⁴⁰⁶ LCJTI, above mentioned, note 252.

* ⁴⁰⁷ See the article of P. TRUDEL, «  The responsibility for the actors electronic commercial  », COp cit., note 315, p. 607.

* ⁴⁰⁸ Project of LEN, above mentioned, note 227.

* ⁴⁰⁹ Id., art 2 ((a)).

* ⁴¹⁰ The forum of discussion is the service offered by a waiter of information or an electronic babillard in a network like Internet and which makes it possible a group of people to exchange their opinions, their ideas on a subject particular, on line or remote, according to varied formulas (mailing list, channel IRC, etc)  ; catch on the Office Québécois of the French lange, on line on  : < http://www.olf.gouv.qc.ca/ >.

* ⁴¹¹ Id.  : The clavardage is the activity making it possible a Net surfer to have a written, interactive conversation and in real time with other Net surfers, by interposed keyboard.

* ⁴¹² Directive on the trade electronic, above mentioned, note 176, art 21-2.

* ⁴¹³ Indeed, certain authors apply the mode of the responsibility for the editors, the producers, the counterfeit... There is no consensus on the rules to apply for this kind of people receiving benefits.

* ⁴¹⁴ See Valerie SÉDELLIAN, In connection with the responsibility for the tools of research, February 19, 2000, on line on  : Juriscom.net < http://www.juriscom.net/chr/2/fr20000219.htm > (site visited on January 20, 2004)  ; C. ROJINSKY, Sens prohibits- the responsibility for the creator of hypertext link because of the illicit contents of the target site, loc. cit., note 275.

* ⁴¹⁵ It is Christian PAUL in his report/ratio of July 2000 (COp cit., note 17, 16) which recommended the installation of a Forum of the rights of the Internet, an organization of a new kind which should be made up like an association and would have a mission of general interest in order to allow a better regulation of Internet network and the dialog with the Net surfers.

* ⁴¹⁶ RECOMMENDATION OF THE FORUM OF THE RIGHTS ON THE INTERNET, Which responsibility for the creators for hyperlinks towards the illicit contents  ? , COp cit., note 352.

* ⁴¹⁷ RECOMMENDATION OF THE FORUM OF THE RIGHTS ON THE INTERNET, Which responsibility for the organizers for forums for discussion on the Web  ? , July 8, 2003, on line on  : The Forum of the rights of the Internet < http://www.foruminternet.org/telechargement/documents/reco-forums-20030708.htm > (site visited on January 20, 2004). The forums of discussions in general have a regulator which exerts a control on the various contents published.

* ⁴¹⁸ «  With our direction, the responsibility for the suppliers of hyperlinks because of the contents of the dependant sites must be appreciated in the same terms as the responsibility for the suppliers of lodging  »  : T. VERBIEST and É.WÉRY, «  The responsibility for the suppliers of services Internet  : last jurisprudential developments  », loc. cit., note 161, 172.

* ⁴¹⁹ DMCA, above mentioned, note 214.

* ⁴²⁰ See T. VERBIEST, «  Bill for confidence in the numerical economy  : critical analyzes  », loc. cit. note 236, 11  ; Thibault VERBIEST and Gilone of UDEKEM, Responsibility for the suppliers of hyperlinks and search engines  : last developments, August 18, 2003, on line on  : Right and New Technologies < http://www.droit-technologie.org/1_2.asp?actu_id=810 > (site visited on January 20, 2004).

* ⁴²¹ LCJTI, above mentioned, note 252, art 22 last subparagraph.

* ⁴²² Article first of the Decision n°276/1999/EC of the European Parliament and the Council of 25 January 1999 adopting a Community action plan multiannual aiming at promoting a surer use of Internet by the fight against the messages with contents illicit and prejudicial diffused on the world networks, OJ C.E, n°L 33 of February 6, 1999  ; in appendix in the book of P. BREESE, legal Guide of the Internet and the electronic trade, Paris, Vuibert, 2000, p. 408, on page 410.

* ⁴²³ In particular Industries of the discs which make important pressures so that the private individuals stop downloading pieces of music without paying royalties.

* ⁴²⁴ Decision n°276/1999/EC, above mentioned, note 422, art 2.

* ⁴²⁵ See the speech of Francoise BERTRAND, President of the Council of broadcasting and Canadian telecommunications, Ottawa (Ontario), May 17, 1999, on line on  : CRTC < http://www.crtc.gc.ca/frn/NEWS/SPEECHES/1999/s990517.htm > (site visited on January 20, 2004).

* ⁴²⁶ See the article of T. VERBIEST and E. WÉRY, «  The responsibility for the suppliers of services Internet  : last jurisprudential developments  », loc. cit., note 161.

* ⁴²⁷ SANTIAGO CAVANILLAS, COp cit., note 214, p. 51  : «  To consider that the person receiving benefits knew (and was thus to act, under penalty of engaging its responsibility) will be enough it to a simple anonymous denunciation (near the person receiving benefits and Parquet floor, for example) or to information in public matter (a such mention in the press), or will be necessary it a more formal complaint  ?  ».

* ⁴²⁸ F. LESORT and L. SZUSKIN, loc. cit., note 236  ; and Id., p. 45  : «  It must act quickly, with the risk to engage its criminal responsibility towards the injured thirds, without acting too quickly, with the risk to engage its contractual liability towards its customer  ».

* ⁴²⁹ F. AUMUELLER, loc. cit., note 277, 103.

* ⁴³⁰ Project LEN, above mentioned, note 227.

* ⁴³¹ Id., art (à), I-2.

* ⁴³² D.C.Q, art and C.civ., art 1352.

* ⁴³³ Michel ELIE, «  With the sources of the Net  », February 2-3, 1997, the Television-Radio-Multi-media- World.

* ⁴³⁴ Domenica CUSTOS, freedom of expression on Internet in the United States and in France, University Paris-I the Pantheon Sorbonne, International Conference the Internet and the Right  : Right European and compared Internet, September 2000, p. 17, on line on  : < http://droit-internet-2000.univ-paris1.fr/dossier7/Dominique-Custos.doc > (site visited on January 29, 2004).

* ⁴³⁵ Convention of safeguard of the humans right and of fundamental freedoms known as «European Convention humans right» or «CEDH», (1955) 213 R.T.N.U. 221.

* ⁴³⁶ See for more information the article of PF. DOCQUIR, loc. cit., note 293.

* ⁴³⁷ Martin IMBLEAU, negation of Shoah- Freedom of expression or racist crime  ? Negationnism of Shoah in international law and compared, Paris, Harmattan, 2003.

* ⁴³⁸ Court. eur. D. h., Thoma C. Luxembourg, March 29, 2001, § 44  ; Lingens C. Austria, 8 juil. 1986, § 41.

* ⁴³⁹ Court eur. D. h., Handyside C. Royaume-uni, December 7, 1976, § 49.

* ⁴⁴⁰ International pact relating to the civil laws and political, (1976) 999 R.T.N.U. 171.

* ⁴⁴¹ Universal declaration of the humans right, A.G. Res. 217 A (III), Doc. N.U. With/810 (1948), art  : «  Any individual is entitled to the freedom of thought and expression, which implies the right not to be worried for its opinions and that to seek, to receive and spread, without considerations of borders, information and the ideas by some means of expression that it is  ».

* ⁴⁴² Charter Canadian of the rights and freedoms, above mentioned, note 78.

* ⁴⁴³ See the following stops  : SDGMR C. Dolphin Delivery Ltd., [1986] 2 R.C.S. 573 (the freedom of expression must be interpreted in a broad and generous way); Ford C. Quebec (Attorney General), [1988] 2 R.C.S. 712; Irwin Toy Ltd. C. Quebec (Attorney General), above mentioned, note 74; Edmonton Newspaper C. Alberta (Attorney General), [1989] 2 R.C.S. 1326; R. v. Keegstra, above mentioned, note 73.

* ⁴⁴⁴ Id. It acts of the first business treating of the freedom of expression. It indicates that it is necessary to analyze the contents of the expression in question and to look at if it is attached to the great values protected by the freedom of expression  : participation in the political processes, research of the truth and personal blooming. If the contents of the expression move away from these values, the State has any latitude to limit them or remove them  ; See also stop R. v. Keegstra (Id., 726).

* ⁴⁴⁵ It is not necessary to examine the veracity or the falseness of a matter and even less the popularity of this last. See Ross school C. Conseil of the district n°15, [1996] 1 R.C.S. 826, 865  ; R.C. Zundel, above mentioned, note 85.

* ⁴⁴⁶ Irwin Toy Ltd. C. Quebec (Attorney General), above mentioned, note 74; R.C. Keegstra, above mentioned, note 73; R.C. Andrews, above mentioned, note 84.

* ⁴⁴⁷ This stop takes again another judgment of the supreme Court  : Switzman C. Elbling, (1957) R.C.S. 285, 306.

* ⁴⁴⁸ R.C. Keegstra, above mentioned, note 73, 735.

* ⁴⁴⁹ [1986] 1 R.C.S. 103.

* ⁴⁵⁰ Charter of the rights and freedoms of the person, above mentioned, note 79.

* ⁴⁵¹ Ford C.P.G. of Quebec, [1985] C.S. 147 or J.E. 85-59.

* ⁴⁵² The Canadian Charter forms integral part with the Constitution. It thus precedes all the other laws except those constitutional.

* ⁴⁵³ Christian BRUNELLE, «  The applicability of the Charters of the rights  », in Collection of right 2001-2002, School of the Bar of Quebec, vol.7, Right administrative public and, Cowansville, Editions Yvon Blais, 2001, p.33, on page 35.

* ⁴⁵⁴ Declaration of the rights of man and of the Citizen of 1789, in line on  : Presidency of the Republic < http://www.elysee.fr/instit/text1.htm#finNavSec > (site visited on January 29, 2004).

* ⁴⁵⁵ Jean MORANGE, freedom of expression, coll Which do know I?, Paris, PUF, 1993, p. 24.

* ⁴⁵⁶ For example, the Decree of 1939 on the foreign publications, the Law of 1949 on the protection of the minors, Law Gayssot of 1990 on the revisionists, the Law Guigou on the protection of the dignity of the victims of 2000; See the book of E. DUVERGER and R. MÉNARD, COp cit., note 119, p. 38 and 39.