La protection des mineurs sur internet

The protection of the minors on Internet : problems of the pornography

The stereotype of the cybercriminel hidden under the computers of a hardly enlightened studio and under the weight of the abominable images, unceasingly seeking to move to escape from the inquisitive eyes and the ire from a determined judge does not have definitely anything a caricature. At the same time, the Internet which is sometimes taxed with «public menace» and which is the subject sometimes of prohibition (1(*)), would remain without defense if it did not have many merits. Which merits become almost essential to each one in its daily newspaper : courriel, electronic trade, search engines, offers and applications, etc find great prosperity there.

The passion however seems to veil extremely worrying risks. Because one can count with the daily newspaper the communications with the obviously immoral and illicit contents (violence, racism, xenophobia, drug, alcohol and pornography) on Internet. These not very advisable calls notwithstanding are widely diffused there.

Justice, just like the majority public opinion, often runs up against legislative contradictions while at the same time the extraneity being is the gasoline even Internet. Indeed, Internet network is an open network whose dimension exceeds necessarily the borders. «Legal frustrations» which marked Yahoo.Inc jurisprudence ! relating to the exposure and the auction sale of the Nazis objects on Internet (2(*)) testify, alas, of the difficulties worthy of a shock of cultures.

This legislative contradiction is to be feared in the child welfare on Internet network. Because when contents are considered to be illicit and continued under the legal status of the State of the recipients but is not it under that of its author, the immediate result seems to us to be a conflict of laws which is reflected naturally on the decisions of court. Frustrations of such a situation is to see the requests for exequatur remained dead letters.

Targets of indelicate tradesmen, the children are recipients of publicities of dangerous products and other illicit requests. Thus, they is often exposed to digital components likely to carry damage to them. Among these contents prejudicial one counts in particular the pornography.

The pornography can be defined as an image or contents openly showing sexual intercourse or sexual representations likely to encourage with such relations.

The child exposes himself doubly to the pornography : he exposes himself to it not only as a spectator but also as a sex object. No one is not unaware of unfortunately that the child is too often the object of a canted sexual covetousness : the pedophilia^3(*).

It is necessary, as of now and being France, to note that if the pornography is not prohibited for the adults, it goes from there differently for the children. It is what prescribes to the point article 227-24 of the New Penal code^4(*). In addition, no one is not unaware of the violent character and degrading certain pornographic images. On this assumption, the pornography comprises, with it only, all the elements necessary to the qualification of the offense of article 227-24 CPC.

In which measurements and by which means a better protection of the minor is it possible in such a context ?

Within the framework of the French and Belgian rights, a remarkable penal arsenal protects the minor from the pornography, even if it encounters sometimes against difficulties of interpretation and legislative contradictions (I). Also, of specific and technical measurements seem they necessary to supplement these legislations (II).

I/ Franco-Belgian legislations : a remarkable penal arsenal

French right for its part class pornographic images forwarding via Internet in two categories: Those prejudicial with the minors because of representation of the scenes in pornographic matter and those reproducing of the minors as sex objects.

ü Those prejudicial with the minors because of representation of the scenes in pornographic matter: the fact of diffusing these images without no means being used to prevent the minors from y having access is repressed by article 227-24 of the Penal code.

Jurisprudence already had the occasion to apply this penal provision in connection with Internet sites in pornographic matter^5(*). A returned decision on April 2, 2002 by the Court of Appeal of Paris wanted to be dissuasive. Doubling the sorrow inflicted in first authority, the thirteenth Room of the Court indeed condemned 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^6(*).

This obligation of precaution and information was reiterated by jurisprudence on several occasions. In a returned decision on June 10, 2003, the correctional Room, Court of Appeal of Angers, 10/06/2003, public Ministry C/Mr. Bruno R.^7(*) recalled this obligation of precaution and information before releasing prevented which sent the illicit contents via courriel for defect of moral element. But the decision which is not taste of the public Ministry is struck of an appeal in cassation.

Without specifying the precautions which were to be taken by the diffuser, the Court of Appeal was satisfied to criticize the protective measures which were taken by prevented. It in particular considered that them « warnings and information on the software of access control presented in the banner pages » do not constitute « precautions useful Those prejudicial for the minors because of representation of the scenes in pornographic matter  », those intervening once the user reached the site and could view the texts and the photographs of presentation in pornographic matter.

This problem arises more with the Spamming which « is the massive sending, and sometimes repeated, not requested electronic mails, with people with whom the shipper forever have contact and whose it collected the electronic address in an irregular way »^8(*). The same difficulty appears with the «pop up» which is small stereotypes^9(*) of which the proven goal is also to make publicity. The latter have also the characteristic to be an aggressive and forced publicity.

The French criminal law also seizes the pornography prejudicial with the minor because of representation of his body in scenes in pornographic matter. It is article 227-23 of the New penal code which represses the pornography known as childish^. (^10(*))

ü Those representing the body of a child in scenes in pornographic matter

Concerning the childish pornography or the «pedopornography», the French legislator wanted to create an autonomous infringement.

The pedopornography on Internet is a true disaster. Because in spite of its immoral character, it is in full rise and remains extremely profitable for the underground economy. The figures speak about themselves. According to the estimates produced by the organization « Save the Children », the Internet would lodg more than 70 miles Web sites reproducing of the material paedophile and containing a total of 12 billion images (^12(*)). The reliability of these figures does not have, for the time being, is the subject of any dispute.

The picture drawn by Richard Poulin last December is seizing and shows that each day and everywhere in the world, the rape of child^13(*) is treated into objet d'art :

« The international industry of the childish pornography or pedopornography is, in the United States, one of the artisanal large-scale industries. [...]. In Germany, the police force estimates at 130.000 the children who would be constrained with pornographic practices. According to an investigation led to the University of Pennsylvania, between 300.000 to 400.000 children are constrained each year in America with the prostitution, the pornography or other forms of sexual exploitation. Katrin Hartmann, secretary-general of the Organization against the sexual exploitation of the children at commercial purposes, considers the situation even more serious in the States of the Soviet ex-Union : gangster organizations discovered the lucrative trade of the exploitation of the children... »^14(*).

In the United Kingdom and in Italy, as in several European countries besides, the legal authorities try to suppress it.

In the United Kingdom, in February 2003, more than 1600 individuals were stopped within the framework of the operation baptized «Ore», gigantic police investigation British into the pedophilia on the Internet.^15(*)

In Italy, within the framework of an investigation on a large scale, the Substitute of the Prosecutor of Venice ordered 78 searchings, and of the loads were retained against many people in Italy of the chief of detention of pornographic material available on line. It is that, according to the Italian organization « Stop it », the sales turnover generated by the sites paedophiles in Italy would reach 11 billion euros roughly per annum^16(*).

Penal repression seems to be the immediate response to this plague. But how to be caught there ?

The majority of the European legislations choose clearly the repression of the propagation of illicit contents by Internet. Unfortunately, the American legislation remains ambiguous in this respect while asserting that under the terms of the first amendment of the constitution of the USA, the freedom of expression is an irreducible basic right.

This libertarian concept of American right is not that of the Belgian right or the French right where « there is no freedom without responsibility ». The Internet is not withdrawn from the rule.

Article 383 (a) of the Belgian penal code^17(*) punishes reclusion and of a strong fine whoever will have exposed, sold, rented, distributed or given from « visual aids » when those represent positions or sex acts in pornographic matter, implying or introducing old minors of less than sixteen years.

Also punishable under the same article that which will have them, for trade or of the distribution, manufactured or held, is imported or makes import.

If the diffusion of contents paedophiles via Internet is aimed by this provision, that in is it concerning the simple detention of images or films with character paedophile on a purely personal basis ?

In theory, the only fact of consulting or of holding information does not constitute an illicit act in oneself. The reason in is simple: when information is struck of illegality, it is in general its author who is continued, and not that which holds it or consults it.

However, certain information is at this point significant or illicit that the legislator judged good to make weigh on whom holds or a share of responsibility reads it.

That allows to a certain extent to better fight against the impunity which would result from the extraterritoriality of the infringement, because the possible paedophiles could delocalize their activities.

The pedopornography thus forms part of the information subjected to a special mode.

Indeed, the legislator intended to attack the root of the problem: without consumers, not of network nor of traffic aiming at the sexual exploitation of the minors.

Above mentioned article 383 (a) of the Belgian Penal code lays down the following innovations thus:

o on the one hand, the law accuses the possession with full knowledge of the facts emblems, objects, films, photographs, slides or other visual aids representing of the positions or the sex acts in pornographic matter implying of the minors of less than sixteen years.

However, it is regrettable that the Belgian legislator restricted himself to aim «the photographs, slides and other visual aids» instead of having recourse to a more neutral expression on the technical level. Indeed, Internet shelters very many sound files; when they are activated, they often let sometimes hear a history told by a narrator.

This assumption leaves us perplexed since the sound files can also constitute pornographic data insofar as the sex act implying a child can be told there.

Very contained which explicitly puts in scene minors of less than sixteen years in activities in sexual matter or pornographic tomb under the blow of this law.

In the current state of the legislation, another vision is possible: the criminal law being of strict interpretation, the term «photographs and other visual aids» exclude the sound files clearly.

o in addition, it is possible to continue in front of the Belgian repressive courts, the Belgian, or the foreigner residing temporarily or not in Belgium, which would have, in or out of the territory, committed the offense described above, even in the absence of denunciation on behalf of a foreign authority.

Thus, whoever alive on the territory and holds, with full knowledge of the facts, of the illicit photographs which it downloaded on Internet or which it received in a forum of discussion, can be the subject of continuations in Belgium, even if these photographs are held on a waiter located abroad.

In the same way, the foreigner who would have downloaded these photographs, even starting from computers located abroad, can be continued in Belgium in so far as it is found in Belgium, for example because it spends the holidays there. The same rule applies even when the foreigner is only of transit.

There is a similarity between the Belgian and French right in the fight against the extraterritoriality of the sexual infringement against the minors in general and the pedopornography which it is advisable to note.

Indeed, for an effective repression of all the forms of «sexual tourism», article 19 of the French Penal code extends the extraterritoriality of the French criminal law, with regard to at the same time the conditions of its application and the people which the infringements can be reproached.

Is thus carried out to the extension of the application of the French law for the whole of the crimes or sexual offenses made against minors abroad, whereas currently, this extension is not provided out of criminal matter, without condition of reciprocity nor of denunciation or preliminary complaint, that for the sexual attacks accompanied by the payment of a remuneration (articles 222-22 and 227-27-1 of the New penal code, resulting from articles 19-1 & III). For a better coordination, the last subparagraph of current article 227-26 of the penal code is removed (article 19-II).

Moreover, the French criminal law will apply from now on in this field, not only with the French, but still with the people usually residing to the French territory. The difference of the legal situations reserved to the French and the abroads living in France, the latter escaping any continuation, appeared unjustifiable to the legislator.

At the level of the European Union, the European Council agreed in October 2002 on a draft decision relating to the childish pornography, which accuses in particular the possession of contents paedophiles via information processing systems.

Another interest of this future more constraining European legislation : it sets up in offense the childish pornography carried out with drawings or synthesized images contrary to the American right which deliberately seems to be unaware of.

On the legal level, this text must be greeted because it is rare that the Member States manage to harmonize a whole side of their criminal law and especially in such an important matter.

This text usefully comes to on supplement the International Convention on the cybercriminality of the Council of Europe signed in Budapest November 23, 2001 (^18(*)).

Indeed, this Convention aims in particular the infringements referring to the childish pornography. The text forces on the Member States the Council of Europe to set up in penal infringement certain intentionally made illicit behaviors, of which the fact of diffusing, to get or have childish pornography by the means of an information processing system.

Under the terms of article 227-23 CPC, the circulation of images, whatever are the forms, representing a sexual abuse child is punished. The correctional judgment of the Court of Bankruptcy of Mans, February 16, 1998 in the business Mister the pH/Public prosecutor. H. went in this direction.

The completely virtual images with character paedophile fall under the blow from the criminal law. Can, for this reason, being taken into account the drawings and synthesized images representing children obviously.

The subject of the pornography obviously raises the question of the right to the image. The right to the image is not actually that a facet of the right to the respect of the deprived life as the doctrines show it (^19(*)).

Concerning the right to the image, except cases envisaged by the law, only the assent of a person allows to reveal her image.

As showed it a judgment of the Court of Bankruptcy of Deprived 3 September 1997 very with accompanying notes in its time^20(*), the violation of the right to the image is halfway between the civil and penal offense. In the species, not only there was an attack with « significant data » sanctioned in article 226-19 of the New penal code but one could retain the violation of the right to the image based on article 9 of the Civil code.

Interpretation given to the right to the image by the doctrines and jurisprudence it appears that a minor cannot validly grant the disclosure of his image. Seen under this angle, the pedopornography is naturally and necessarily an infringement with the intimacy and the right to the image of the minor.

The criminal law tends to frame the pornography in order to preserve the minors. As for the pedopornography, it is primarily criminal. The disclosure of the pedopornography by Internet constitutes an aggravating circumstance under the terms of the law of June 17, 1998 relating to the prevention and the repression of the sexual infringements like to the protection of the minors.^21(*)

However, force is to note that the existence of a repressive device is not enough to protect the child from the pornography. In other words, the effectivity of the legislation relating to the protection of the minors on Internet seems from now on to belong to a logic of permanent dialog between the States and the various actors on Internet. From there, technical measurements allowing the identification of the minors on line prove to be useful.

* ¹ Several States prohibit connection to the Internet. The prohibition of connection Internet is more general and different from the censure which is the limitation of the access, by the prohibition of certain sites.

The modes Saoudi, Tunisian and well of others censure Internet as it would be likely to corrupt the spirits.

To see Marc Epstein, Domenica Lagarde and Olivier Fiani, the kingdom of all the dangers, the Express train of the 13/02/2003 pennies  : http://www.lexpress.fr/Express/Info/Monde/Dossier/arabie/dossier.asp?nom=

* ² Cf Yahoo.Inc jurisprudence  !

To also see  :

- Yahoo/Licra: the French judgment confronted with the American right,

Under  : http://fr.gsmbox.com/news/mobile_news/all/25215.gsmbox

- Yahoo adopts the biddings Nazis but request always the cancellation of the French decision, January 4, 2001

- The judgment of Yahoo! confirmed in Paris, November 21, 2000

- The case Yahoo poses the problem of the trade on Internet on a world level, November 22, 2000

* ³ The pedopornography is not other than the transposition of the pedophilia in pornography. From where need for bringing them closer. The Internet proved to be a ground privileged for the pédocriminels.

* ⁴ Article 227-24 of the Penal code, «  The fact is to manufacture, transport, diffuse by some means that it is and whatever of either the support a message in violent or pornographic matter or likely to carry seriously reached to human dignity, or to make trade of such a message, is punished three years of imprisonment and 75000  euros of fine when this message is likely to be seen or perceived by a minor.  »

* ⁵ CA Paris, 13 May 1998, quoted per G. DESGENS-PASANAU, the protection of the minors on Internet, Small posters, August 01, 2001, p. 11  ; CA Caen, CH. corr., Sept. 8, 1999, Mr S.C/the Ministry public, available on the http://www.juriscom.net/ site;

* ⁶ CA Paris, 13th  CH., 2  avr. 2002  : Juris-dated, No  172666; Com. Com. électr. juil-August 2002, p. 38, note A. LEPAGE, which quotes other decisions.

To also see Martine RICOUART-MAILLET, Nicolas SAMARCQ, Measurements of filtering and parental control: which protections for the minor Net surfers? , May 06 02, under  : http://www.clic-droit.com/web/editorial/article.php?art_id=121

* ⁷ CA Angers, June 10, 2003, public Ministry C/X, n° 03/00145

* 8 It is the definition given by the CNIL, consultable under  : www.cnil.fr Lira  :http://www.cnil.fr/frame.htm?http://www.cnil.fr/thematic/internet/spam/spam_sommaire.htm

* To also see  : VERBIEST Th., the legal protection of the cyber-consumer, Litec, 2002, p.146

and LEPAGE A., freedoms and basic rights the Internet proof, 2002, Litec, p.328

⁹ Etienne Wery, «the «pop up» soon outlaw in Belgium? A private bill was deposited in this direction ", http://www.droit-technologie.org, October 27, 2003

* ¹⁰ Indeed, under article 227-23 of the Penal code, «the fact, for its diffusion, to fix, record or transmit the image or the representation of a minor when this image or this representation presents a pornographic character is punished three years of imprisonment and 45.000 euros fine.

The fact of diffusing such an image or representation, by some means that it is, of importing it or of exporting it, of making it import or of making it export, is punished same sorrows.

The sorrows are increased at five years of imprisonment and 75.000 euros of fine when it was used, for the diffusion of the image or the representation of the minor bound for a nondetermined public, a telecommunications network.

The fact of holding such an image or representation is punished of two years of imprisonment and 30.000 euros fine  »¹¹.

* ¹² Newsletter within the framework of the program surer EU Internet, n° 23, March 2003, under  : http://www.saferinternet.org/

* ¹³ It arises from the interpretation of article 222-23 of the New Penal code that the rape is a sexual relation not authorized. However it is divided thing that a child cannot validly grant a sexual intercourse, which more is with an adult. Consequently, the pedopornography which is stripped of the assent of the child «sex object» seems to be a rape of filmed child.

* ¹⁴ Richard Poulin, researcher, sociologist and professor at the University of Ottawa, the tyranny of the new sexual order, Dec. 2003, under  : http://sisyphe.org/article.php3?id_article=801

* ¹⁵ New haul in the paedophiles mediums: 34 arrests in London, Dec. 17, 2002, AFP

under  : http://www.bouclier.org/article/861.html

* ¹⁶ Newsletter within the framework of the program surer EU Internet, n° 23, March 2003, under  : http://www.saferinternet.org/

* ¹⁷Article 383 (a) of the Belgian penal code was introduced by the law of April 13, 1995.

* ¹⁸ http://www.droit-technologie.org/legislations/conseil_europe_convention_cybercriminalite_convention.pdf

* 19 G. HAAS, O. TISSOT, Of the studio at the court, 2001, under  : http://www.cyberlex.org/haas/pretoire.htm#_ftnref5

To also see G. HAAS, Loft Story (fine). In connection with the obvious appreciation of the moral wrong in the event of infringement with the private life and the right to the image, July 9, 2001, Advertisements of the Seine, n° 49, pp. 1-4

* ²⁰ G. HAAS, O. TISSOT, Photographs rascals and matter licencieux on Internet licencieux Photographs rascals and matter on Internet, November 20, 1998, under  : http://www.juriscom.net/chr/1/fr19981120.htm

* ²¹ The 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, OJ Number 139 of June 18, 1998.

This law set up the use of a telecommunications network in aggravating circumstance of the procuring, the corruption of minor, the offense of diffusion of images of minors presenting a pornographic character and sexual attack on minor without violence, when the author of these infringements came into contact with his victim thanks to the diffusion on this network of messages intended for a nongiven public.