La protection des mineurs sur internet

II/Of specific and technical measurements of accompaniment

In order to protect the minor on line, it is necessary already that it is identified as such when he connects himself. Thus arises a preliminary question which is that of this identification, prerequisite to the determination of the methods of protection.

1. Towards a new obligation of identification on line of the minors

It is about criminaliser just like the diffusers, the consumers of contents paedophiles and to protect the minors against contents which can be prejudicial for them.

In the audio-visual field, the directive « televisions without borders »^22(*) protects already the minors against such contents. Such is not the case, for the moment, with regard to the contents multimedias conveyed on Internet.

It is in this context that on January 29, 2003, the Observatory of the Rights of the Internet emitted, an opinion with the address of the Belgian federal government, relating to the protection of the minors on the Internet^23(*). This opinion supplemented another opinion given in September 2002 by the Commission on the protection of the private life.

According to the Observatory, the identification is a priority axis to preserve human dignity and honesty in the company of information to the profit of certain categories of vulnerable users, and in particular the minors. It is a suitable means to ensure the control and the safety of the relations on the Internet.

The objective of this way, like other means, is to create a protected and honest space on Internet.

The Observatory recommends in particular, like German legislation, as soon as possible to initiate the adoption of a lawful or legislative framework on the reasonable modes of access control of the minors to the services of the company of the information whose contents are likely to harm their physical or moral blooming.

With believing of it Daily News of April 3, 2003, Germany would be the first European country to adopt a law specifically dedicated to the protection of the minors on Internet. Obviously the role of the Commission on the protection of youth (Kommission fuer Jugendmedienschutz) was dominating in such a legislative development. 

However, the monitoring and the identification are against the right to the respect of the private life which is a basic right recognized by article 8 of the European Convention of the humans right.

In order to allow a reliable identification which is also respectful private life of the Net surfers, the Observatory proposes the creation of a special legal statute for thirds of confidence which would be charged to allot codes « adults » after checking of the age of the applicants, for purposes of consultation of prohibited or inappropriate sites to the minors.

No normative, national or European text, fixes criteria in this respect. The European Commission benefitted from the proposal for a Recommendation « relating to the prevention of the nicotinism and initiatives aiming at reinforcing the fight antitabac » to underline the need for limiting the remote sale by a system of control of age^24(*). However, no indication is given with regard to the nature of these « devices of identification ».

The American legislator, on the other hand, was more loquacious in this respect. Indeed, a federal law, it « Child Online Act Protection » (COPA), imposes on Internet sites proposing harmful contents with the children to restrict the access of them by checking the age of the visitors. 

This law (^25(*)) gives an enumeration, nonexhaustive, measurements of identification considered to be reasonable : recording by means of, an access code credit card « adult » or of a personal identification number, use of a digital certificate or any other measurement which reasonable is had regard to technology available (« by any other reasonable measures that feasible are under available technology ").

It should be noted that this law was attacked for unconstitutionality. May 13, 2002, the American supreme Court estimated that the criteria defined by the COPA to declare contents illicit did not make its field of application «too broad» taking into consideration Amendment First of the American Constitution. In a decision whose range was voluntarily limited, the Court estimated that many difficulties had not been examined by the courts dealing with the substance of a case. The business was thus returned in front of the appelate jurisdiction. In the interval, the law is still not in force and one must remain careful as for his application.

« certificate digital " is an electronic certificate issued by authorities of certification within the framework of the digital signature^26(*). A simple electronic signature, without certification, would be thus insufficient^27(*).

Certain American companies propose already solutions of identification of the age of the minors for the adult sites, and this with an aim clarifies to enable them to respect it « Child Online Act Protection ». For example, the www.cyberverify.com site proposes two methods of identification :

- maybe on line by the credit card

- maybe by sending by the post office a copy of a document of identity (driving license, certificates of birth...)

Cyberverify then delivers a ID and a password to the applicant giving access to him the affiliated adult sites.

However, any measurement of identification of the age of the minors will have to be in conformity with the law « Data processing and Freedoms » and with European directive 95/46/EC^28(*) what Belgium transposed.

On this subject, the National Commission Data processing and Freedoms (CNIL) published on June 12, 2001 a report/ratio entitled « Internet and personal data acquisition near the minors », which points out the legal principles of protection on the matter (29(*)).

2. The filtering and the classification of the contents 

The illiceity of the contents of the data diffused on Internet constitutes the object of a particularly recent and progressive jurisprudence.

Except the pedophilia, the French jurisdictions had, between 1996 and 2003, to come to a conclusion about a score of businesses particularly pushing back. It is the place to discuss the definition which must be given to the concept of contents illicit.

Indeed, the concept of contents illicit must mean in the broadest possible way and cover any kind of possible support. Thus, any message or any image delivered on any support (paper or numerical of which Internet) is subjected, with a principle of admissibility. It is the existence or the recognition of the illicit contents which legitimate any idea of censure.

Filtering, from its finality, fact office of censure. What happenhappens actually ?

It is a solution which consists in installing a software which makes screen with the contents considered to be inappropriate. In fact, the purpose of it will be to block the access to the contents in pornographic matter for the children. A contrario, only the major ones identified as such will have access to the pornography on Internet.

Several methods are available but they are often under-utilized, ignored or ineffective.

A great number of software of filtering are proposed. One notes also the creation of a particular legal statute for thirds of confidence charged to evaluate the classification of the contents of Internet sites for purposes of recognition by the software of filtering.

At the European level, the decision of the European Parliament and the Council of January 25, 1999 adopting a Community action plan multiannual is intended to incite with a surer use of Internet. It recommends systems of filtering and of « rating » of the sites Intern. The goal of this operation is of éradiquer the contents illegal or prejudicial on the Internet.

The systems most known, and supported by the European Union, are those developed by :

- the platform PEAKS (Platform Content for Internet Section) (^30(*)), common language to describe the contents, elaborate in 1995 by the World Wide Web Consortium ;

- the association of classification of the contents of the Internet (^31(*)), independent organization with nonlucrative goal with offices in the United States and in Europe. The goal of the ICRA is to protect the children from the potentially harmful contents while defending the freedom of expression of the content providers. The ICRA has and manages the system of labelling ICRA and its predecessor RSACI.

March 11, 2003, the European Parliament decided to prolong two years the Community action plan in order to introduce new elements there and to bring various adjustments there.

It is thus a question of extending the cover of the project to new technologies on line : mobile contents and high flow, plays on line, the file transfer of station to station commonly called peer to peer and all forms of communication in real time.

This stage, it is appropriate to wonder about the real interest of filtering.

Although conceived with a legitimate aim, filtering is today far from being the panacea of the calamity of the illicit contents on Internet and sees legitimacy like the effectiveness disputed.

If filtering is, in its design, very protective against the illicit contents, there do not remain about it less attentatoire with fundamental freedoms in its principle. It can be perceived like an illegitimate attack with the freedom of communication and the private life.

Initially, with regard to the freedom of communication, it is an obstacle :

The freedom of communication which is a concept more including that the freedom of expression is an objective with constitutional value like it specified the constitutional Council in his decisions of October the 10, and 11 1984. It is not only one freedom of emission but especially a freedom of reception. However the filtering of the illicit contents can cause to prevent not only the minors but sometimes the major ones who would not manage to prove their majority on line to reach information. Filtering is, moreover, criticizable insofar as it constitutes a censure a priori.

Then, as regards the private life, filtering is liberticide :

In theory, any person is entitled to the respect of her private life. While posing, the principle of the right to the respect of the private life, neither the Community legislator (article 8 of the CEDH), nor the national legislator (article 9 of the Civil code) seem to make any distinction between the major one and the minor. From there, it is possible to deduce that any person has there right whatever her age. Filtering because of the age or the illiceity of the contents seems necessarily attentatoire with the private life of the Net surfers.

Filtering is also criticizable insofar as it is often entrusted to suppliers of access Internet (FAI) which is only people of private law who are invested of no policing powers.

This position must, however, being moderate because the control of the parents of the contents accessible to the children, far from being perceived like an attack with the private life of those, is being an obligation : one cannot in the name of the right to the respect of the private life to leave the children alone vis-a-vis the dangerous and illicit contents. It is advisable to recall that the education of the children remains a legal obligation for the parents under the terms of articles 371-1 and 371-2 of the civil code. It is necessary in this logic to privilege the concept of family private life in which the parents hold a legitimate role of critic.

The doctrines had the merit to distinguish in this respect the responsibility intrafamiliale and the responsibility extrafamiliale in connection with the question for control and identification for the illicit and dangerous contents. ^32(*)

Moreover, it should be noted that the law « numerical economy » envisages with to confer on a judge the capacity to order with the FAI to filter the access of their subscribers to the contents considered to be illicit.

But this position of the future law raises a basic problem if it is retained that the supplier of access is a highway of information. Contrary to the shelterer who can decide fate of the contents that it stores, the FAI does not have any control of the contents.

Article 15 of the European Directive « trade electronic »^33(*) that the law « numerical economy » to the people receiving benefits an obligation monitoring of the contents will transpose prohibited to the Member States to impose which they transmit or store.

This article 15 also recalls that the secrecy of communication is a requirement posed by article 5 of Directive 97/66/EC.

This article 15 also recalls that the secrecy of communication is a requirement posed by article 5 of Directive 97/66/EC.

In this respect, the question arises of knowing if the numerical law economy to be born will be in adequacy with the Directive «trades electronic» that it will transpose. A negative answer to this question would reduce legitimacy de facto even this law.

Lastly, filtering is technically ineffective because it does not make it possible to put a term nor to prevent the illicit contents. The data-processing architecture of the majority of the countries does not allow a centralized control of the contents. Pareillement, the filtering which is not universal but very localized cannot make it possible to stop the message or the illegal image. Result : the defended contents which are always in line will continuous to be accessible from all the other places of the world and even of the country of filtering. It is enough to change connection !

One hopelessly agrees to share the following opinion : « if you believe that the technique will solve your problems, it is that you did not include/understand anything with the technique, nor with your problems ».

But vis-a-vis the stake, there is no more place in the indifference. It is from this point of view and always in search of confidence for Internet that the question of the certification of the domain names arises.

3. Certification of the domain names

The certification is a technique which A consists in reinforcing the safety of the Internet by thus guaranteeing a certain quality of connections. It is, so the combination of technology and the audit.

The introduction of a label with sufficient guarantees, can be a means of ensuring the confidence of the consumer on the Internet like it proposed besides the Observatory of the Rights of the Internet and the Forum of the rights on Internet (FDI)^34(*).

According to the Observatory, this label to be reliable must be accompanied by controls regular, independent and manpower of the codes of conduct which are dependant there.

In addition, of the legislative adaptations can prove to be useful. It is the place to mention the new orientations of the legislator in the protection of the minor vis-a-vis the pornography on Internet.

4. Desirable modifications and legislative adaptations :

Until now, no specific rule is dedicated to the protection of the minors against the contents prejudicial on the Internet or of the comparable networks, whereas national and European rules already exist for other media such as the cinema or television.

It would be advisable to be inspired, for publicity addressing itself to the minors, of article 16 of the directive « television without borders »^35(*).

The bill « numerical economy », currently in front of the Senate, which envisages an administrative police force^36(*) of the electronic trade would find to apply but its final contents remain to be known.

* ²² Directive 89/552/the EEC of the Council of 3 October 1989 aiming to the coordination of certain provisions legislative, lawful and administrative of the Member States relating to the exercise of activities of televisual broadcasting

Official Journal n° L 331 of the 16/11/1989 p. 0051

• * ²³ The opinion is available on the site of the Observatory: www.internet-observatory.be, heading «recommendations». L `Observatoire is an organization public law, created in November 2001 on the initiative of Mr. Charles PICQUÉ, Ministre for the Economy. It has the role  to formulate opinions about the economic and legal problems relating to the use of new information technologies and communication, to organize the dialog enters the economic actors concerned, to inform and sensitize the public in these matters.

* ²⁴ Proposal for a Recommendation of the Council, June 17, 2002, relating to the prevention of the nicotinism and initiatives aiming at reinforcing the fight antitabac. Doc. COM (2002), 0303 final.

Considering 14 additions  : «  It is advisable to mention in particular the problem of the access of the children and the teenagers for the products of the tobacco. This question covers the tender with the sale in conditions of age, as well as the sale by means of slot-machines, the sale in self-service and the sale remote (such as for example the sale by Internet, which should be reserved for the sites protected by devices from identification from the adults resting on effective mechanisms from identification from the age from the purchasers).  »

* ²⁵ Decision available to the address  : http://supct.law.cornell.edu/supct/html/00-1293.ZS.html

* ²⁶ Type of those delivered for example by www.verisign.com

* ²⁷ In France, the law of March 13, 2000 recognizes the legal validity of the electronic signature. It was supplemented by the decree of May 31 2001 which fixes the certification rules of the processes of electronic signature. By this decree, it is established that the certified electronic signature profits from a presumption of reliability. This legislative and lawful device was supplemented recently by a decree of April 18, 2002 (decree n° 2002-535, relating to the diagram of evaluation and certification), and by a decree of the Minister for the Economy, Finances and Industry 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, signed on May 31, 2002 (OJ 132 of June 8, 2002). These texts aim at transposing directive 1999/93/EC of the European Parliament and the Council, of December 13, 1999, on a Community framework for the electronic signatures.

* ²⁸ Law of 11 December 1998 transposing directive 95/46/EC from October 24, 1995 of the European Parliament and the Council relating to the protection of the physical people with regard to the processing of data in personal matter and to freedom of movement of these data (Mr. B. of the 03/02/1999).

* ²⁹ Thus, according to the CNIL, «. The principle of finality must lead the sites which are addressed to minors to collect only the data strictly necessary to the finality.

Any collection of information near minors concerning the family entourage, the way of life of the parents, their socio-professional statute, must be regarded as excessive and unfair.

It is interdict to record the data relating to the racial origins or the political, philosophical or religious opinions or the trade-union memberships, or manners of the people, except express agreement of these last (article 31 of the law of the 6.01.1978). The collection of such data near child must be regarded as prohibited, except if the person in charge for the site is able to bring back the proof that the parents expressly agreed to it.

To in no case, the implementation of a play or a lottery bound for the minors should not result in yielding to thirds the data thus collected, if the person in charge for the site is not able to bring back the proof that the parents expressly agreed to it.

* ³⁰ http://www.w3.org/PICS/

* ³¹ www.icra.org

* ³² DREYER E., Progress technical and private life, the protection of the minors reaching Internet, to adopt the French law like model  ? , Quarterly Review of the humans right, 2003, n°54, p.582, 45 pages

* ³³ 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

J.O. n° L 178 of the 17/07/2000 p. 0001 - 0016

* 34 Certification and certification, consultable under  : http://www.droitdunet.fr/par_themes/lecture.phtml?type=themes&it=4&ic=45&id=3

* ³⁵ Directive Television without borders,

Under  : http://www.info-europe.fr/europe.web/document.dir/fich.dir/QR000907.htm

* ³⁶ See article 8 of the numerical bill economy

Available under  : http://www.legifrance.gouv.fr