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.

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.

A significant number of public awareness campaigns reinforces today the objectives laid down by the legislations.

5. Public awareness campaigns

The protection of the minors on the Internet implies information of the public concerned : children, teenagers, teachers, parents, suppliers of access, managers of Internet sites.

The French «double» of the Observatory of the rights of the Internet, the FDI^37(*), achieve as for it a work of size in the protection of the minors on Internet.

It launched just a year ago (le11 February 2003), with the support of the Ministry delegated to the Family, a working group devoted to the child welfare vis-a-vis the contents and illicit behaviors on Internet in France and Europe^38(*).

Lastly, the authorities of regulation of the Internet take an active part in the debate on the protection of the minors on Internet. Consequently, the question arises of knowing which is the legal authenticity of the opinions delivered by those.

6. Quid of the legal authenticity of the opinions of these organizations ?

It should be noticed, in this respect, that in France as in Belgium, the opinions resulting from these public organizations do not have the force of law but are advisory. However, a nuance is necessary : the FDI is officially supported by the ministry delegated to the Family ; in Belgium, the Observatory of the rights of the Internet was seized on May 8, 2002 by the Minister for the economy « of a request for opinion on the rights of the minors of age evolving/moving on the Internet ».

In general, the opinions in accordance with an official consultation of the government, constitute bases of bills.

All lets believe that the pornography is encircled with difficulty by the Right carrying abundant :

· The national law is not enough : the extraneity of the pornography on line highlights the limits of the national public action.

· International law : it misses cohesion, and that reduces the coercive force.

At the European level, Eurojust which is a legal and police co-operation tends to stop the impunity of transborder criminality. ^39(*)

· The netiquette : of a rather contractual value, it sees legitimacy or then the debatable authority vis-a-vis a primarily penal infringement.

This last report returns to the principle of the so expensive legality of the offenses and sorrows to Cesare Beccaria^40(*). « Light Nullum crimen, nulla poenna sine » : there is neither offense, nor sorrow without law^41(*).

The problems of «the pornography on Internet and the protection of the minors» let raise another question which is that of the specific regulation.

... Of the pornography on Internet and the protection of the minors : which regulation ?

Maximilien AMEGEE

HAAS Company of lawyers - Department News Technologies

Doctorand

Of Right of New technologies and information systems

DEA of general Theory and philosophy of the right

Large a thank you with Maîtres Thibault Verbiest and Etienne Wery who initiated me with this topic.

* 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.

* 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

* 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

* ³⁷ Consultable under: http://www.foruminternet.org

* ³⁸ The working group To protect childhood on Internet in France and Europe

Under  : http://www.foruminternet.org/groupes_travail/lire.phtml?id=506

* ³⁹ Eurojust is a great first in the European construction industry since it is at the same time the legal co-operation and the police co-operation. It results from the new drafting of articles 29 and 31 of the Treaty on the European Union adopted with the European Council of Nice.

* ⁴⁰ Cesare Beccaria, Of the offenses and the sorrows, Paris, Flammarion, 1990

(It is the republication of its test «Of the offenses and the sorrows», which it initially published in an anonymous way in 1764)

* ⁴¹ Article 111-3 of the New penal code points out the fundamental principle of the legality of the offenses and the sorrows, «  no one cannot be punished for a crime or an offense whose elements are not defined by the payment  »

Article 8 of the Declaration of the rights of man and of the citizen of August 26, 1789 clearly posed this rule  : «  no one can be punished only under the terms of one law established and promulgated before  ».