If Internet "chat world without end" by the Supreme Court of the United States, serves the cause of freedom of expression, this communication tool is no exception to the need to frame it, or to limit it. Appears the major difficulty when it comes to regulating the rights and liberties: striking the right balance between multiple principles, each with its own legitimacy (security and autonomy of the individual, for example). If the balance is struck between the exercise of freedom of expression and its regulation on the Internet, we can then assert that freedom of expression is guaranteed. However, assuming that the censorship would take precedence over regulation, it will then lift the shields, because the question "freedom of expression is the warranty on the Internet? "The answer is" no! .
Introduction
Freedom expression is a human called "classical rights" or "first generation rights." She is also a fundamental freedom in that, firstly, it is protected and constitutionnelle1 conventionnelle2, where other, it is enforceable against the law and not only to the Administration and which finally producing legal effects in relations between individuals and not just between individuals and governments, it has a horizontal effect.
Freedom of expression is defined as "freedom to reveal autrui3 his thought. " Revolutionaries who adopted in the Declaration of Human Rights and Citizen of 1789 (Article 11) have immediately wanted to give it universal appeal, stating that it is a "rights and most precious rights "and listing all modes of expression that are then known: any citizen may" speak, write and print freely. " This Article 11 laid down the principle of a free "communication" of "the thoughts and opinions." Only with the Universal Declaration of 1948 that will be added to the free communication of "information". With the Internet, we today face a new means of communication, not only by the technology that is implemented, but also because it allows a global communication of ideas, opinions and information.
The European Court of Human Rights (ECHR) has a habit of saying that "freedom of expression constitutes one of the essential foundations of a democratic society and applies even for ideas that offend, shock or disturb "(ECHR, Handyside cons UK, December 7, 1976). However, this does not mean that it regards as absolute freedom. It must indeed to see that Article 10 of the European Convention on Human Rights (ECHR), while establishing the principle of freedom of expression and inferring "freedom of opinion and freedom to receive or impart information and ideas without there could be interference by public authority and regardless of frontiers ", it is inconceivable unless limits to this freedom. Freedom of expression occurs, in fact, in a setting as necessary in a democratic society than freedom itself and has both moral and legal requirements.
if the Internet, "global conversation without end," according to the Supreme Court of the United States, serves the cause of freedom of expression, this communication tool is no exception to the need to frame it, or the limit. Appears the major difficulty when it comes to regulating the rights and liberties: striking the right balance between multiple principles, each with its own legitimacy (security and autonomy of the individual, for example). If the balance is struck between the exercise of freedom of expression and its regulation on the Internet, we can then assert that freedom of expression is guaranteed. However, assuming that the censorship would take precedence over regulation, it will then lift the shields, because the question "freedom of expression is the warranty on the Internet? "The answer is" no! .
Therefore, to answer this question, it should be considered, firstly, the extent of freedom of expression on the Internet (1) and consider, on the other hand, means of regulation of that freedom (2).
1. The extent of freedom of expression Internet
In the field of protection of rights and freedoms, the main difficulty lies in reconciling conflicting principles and, as such, freedom of expression is not absolute, even on the Internet.
1.1. Internet for freedom of expression
Internet seems to be a haven for freedom of expression, conscientiously paradise guarded by the European Convention on Human Rights. A system of protection of rights and freedoms of the most effective has indeed been set up in 1950, establishing the European Court of Human Rights. If the Court decides that declaratory judgments, they nevertheless have a real significance, which suggests that the ideal of harmonizing the protection of rights and freedoms in Europe, sought through the drafting of the Convention, has been reached. In France, national courts are well aware that if a rule or a national procedure was deemed contrary to the Convention any business, non-compliance by them of the decision of the Strasbourg Court overrides the one hand, his conviction whenever the rule or procedure in question has been applied in France to an individual and secondly the commitment to its international responsibility by reason of the breach of the terms of the Convention.
1.1.1. Easy exercise freedom of expression on the Internet
Despite some effects, particularly on issues of reliability of the information and the risk of information overload, the Internet clearly facilitates freedom of expression. It was indeed able to attend the rapid development not only of self-publishing, but also blogs and diaries of all kinds. On a more political, the web has also provided another forum for activists to associations defending human rights and has emerged as a valuable tool in countries where freedom of expression is menacée4.
Internet has also fostered the plurality of information insofar as the sources of information have largely diversified. Due to this competition from the Web to traditional media, we have seen emerge three degrees of dissemination of information calling into question the supremacy of the media for information. The first degree of diffusion is occupied by direct communication, without filter, which takes journalism wild. Then the distribution of content on the web only by organizations determined to apply the rules of journalism. And finally found the dissemination of information on the web by traditional media outlets which are provided with an extension électronique5.
Some obstacles
"real world" can also be bypassed in the "virtual world". We remember Dr. Gubler, physician François Mitterrand, who had published a book in which he revealed information about the illness of former President of the Republic. While the book had been banned from publication, it was digitized and put online on Internet.6.
1.1.2. The protection system the most successful of freedom of expression: the European Convention for the Protection of Human Rights
Freedom of speech seems to have found its most fertile soil on the Internet and enjoys the protection system the most advanced available today, that of the European Convention of Human man. It is tantamount to the European Court of Human Rights to rule on complaints of violations of human rights committed by a Member State, these complaints can be formed by other Member States but also by individuals. Under Article 41 of the ECHR, the European Court condemns the State guilty of a violation of the Convention to give "just satisfaction" to the victim who is a compensation that the state should pay him.
These are mainly to certain provisions of the Convention should be borne in mind with regard to freedom of expression: Articles 9, 10 and 11 and Article 2 of the Protocol of 20 March 1952. Of these various provisions, especially those who are interested in freedom of expression in Article 10. This article distinguishes between the professed views of the individual conscience and speech, speech acts and acts not language (gestures and facial expressions). It applies equally to political discourse than to artistic or literary discourse, even in speech and commercial advertising. Article 10 was originally an extensive jurisprudence of the European Court of Human Rights but also ambivalent as liberal in some cases and not in others.
1.2. The relativity of freedom of expression
Freedom of expression is not immune than others to certain limits, limits must be "necessary in a democratic society" and "prescribed by law." But on the Internet, the multiplicity of private actors sometimes forget that it is the government's responsibility to punish the harmful consequences of the use of freedom of expression.
1.2.1. The submission of the freedom of expression to certain limits
§ 2 of Article 10 of the ECHR provides that the exercise of freedom of expression carries with it "duties and responsibilities ", thus it may be subjected" to such formalities, conditions, restrictions or penalties provided by law and are necessary in a democratic society, national security, territorial integrity or public safety, the prevention of disorder and crime prevention, protection of health or morals, protection of the reputation or rights of others, for preventing disclosure of confidential information or for maintaining the authority and impartiality of the judiciary ". Restrictive measures taken by law enforcement must be proportionate to the interest to protect. Freedom of expression - any more than any other freedom - therefore not absolute. And the jurisprudence of the European Court of Human Rights has since admitted in evidence of interference by governments in a number of opinions: the opinions and representations "obscene", 7 views antisémites8 racistes9 and the homophobic or sexist views, opinions likely to challenge the authority and impartiality of the judiciaire10, opinions on disparagement, criticism or misuse of beliefs religious, offensive attacks against objects of veneration religieuse11.
Internet is not only a space of freedom but also an area of responsibility, a space which does not differ in nature from the physical world. Keep in mind that freedom of expression is arranged in the form of a repressive regime since its exercise does not require the prior consent of the Authority or the judge, and because the right extends only to positive misuse, abuse of freedom of expression, leaving it to the judge to punish (as opposed to a preventive regime which imposes a license Prior to the exercise of freedom). As custodian of the rights and freedoms, the judge has any legitimacy to intervene.
1.2.2. The dangers of "private justice" for freedom of expression
Although we should not be done justice to himself, when a problem arises on the network Justice is not always the first one to bring order. A user can, in fact, be expelled from a mailing list soon during his remarks that are off topic from the topic. Only if it considers that this measure is unjustified it may then go before a judge.
roles should not be confused. The confusion appears when one advocates screening by private actors (such as, for example, where service providers have an obligation to filtrage12). When it comes to taking concrete action, the judge plays a vital role, and the illegality of the content of a site requires a response proportional to the severity of the disorder.
2. Regulating freedom of expression on the Internet
Since freedom of expression is organized as a repressive regime, it is the judge's judicial sanction disregard of limitations. But this repressive regime ensures he respect for freedom of expression? It is ultimately the jurisprudence of the Court of Cassation, which has really helped ensure the preservation of freedom of expression.
2.1. The measures ordered by the judge
addition to repairing the damage and the imposition of a sentence, the judge may order the cessation of the illegal situation. It may, thus, ban access to the site are manifestly illegal or condemn the site editor to modify the content thereof.
2.1.1 . The prohibition of access to the site clearly illegal
The famous "Case of Yahoo! "Of 2000 illustrates the problem perfectly. The UEJF (Union of Jewish Students of France) and the LICRA (International League against Racism and Antisemitism) had before the judge for the U.S. company Yahoo! Inc. sees himself ordered to stop selling Nazi memorabilia through its online auction service and to remove from its hosting service on "Mein Kampf" by A.. Hitler and the "Protocols of the Elders of Zion," anti-Semitic books banned from publication in France. The French judge, who had recognized its jurisdiction because the site was accessible in France, condemned Yahoo! Inc. on-call to filter access to the site by the illegal French Internet users. But in 2002, a décision13 made in the United States considered that the decision of the French judges forcing the gate to prevent access by French Internet violated the First Amendment to the U.S. Constitution proclaims the principle of freedom of expression14. Under this text, Congress can not make any law which limits in any way the freedom of expression. Clearly, the French regime and the U.S. system differ not only a legal but also cultural.
Returning to France. The responsibility of the host would be committed at the actual knowledge of the activity or information illegal if not acted promptly to remove or block access to it (in 6-I-2 and 6 -I-3 of the LCEN). Deleting the reference to the referral of a judicial evoke then use a form of private justice in the hands of hosts, if not encouraged to censorship, at least to the filtering, not to s' expose to call into question their responsibility. Here the criticism has eroded since the end been targeted as clearly illicite15. The problem also arises when the legislature consents to the judge hearing the possibility of prescribing service providers "all measures necessary to prevent injury or damage caused to stop by the content of a communication service to the public online "(Article 6, I-8 of the LCEN). In the case AAARGH (Association of Former lovers Stories of War and the Holocaust), the Tribunal de Grande Instance de Paris had even left it up to ISPs to choose "all measures to stop access" at site16.
Thus, only the judge shall have authority to assess the illegality of a message, especially in desaffaires as delicate as actions for defamation, infringement or invasion of privacy. For cons, the host or ISP should be blamed if they did not immediately react to the knowledge of a clearly illegal content, like a pedophile website or incite discrimination or hatred race.
2.1.2. The obligation to modify the content of a site
This is a flexible measure which involves the correction or deletion of information which is unlawful. The drastic measure is the prohibition of access to the site, or the removal of accommodation. The measure is necessarily radical but ultimately because the site can be reborn under another name.
The judge must still give priority to the extent possible, removing only about illegal. An appellate court noted in a ruling dated October 31, 2001 "If, in the exercise of its powers, the judge must balance the rights of the personality with the constitutional principle of freedom of expression, it was precisely in this case limited its intervention to what was strictly necessary for the injunction found in pronouncing, not a general prohibition of publication, but by allowing the prosecution thereof, subject to the deletion of the image in question could be physically carried out without affecting the consistency of the work and the resumption of marketing. "17
2.2. The work of the Court of Cassation for the preservation of freedom of expression on the Internet
The Court of Cassation has worked for the preservation of freedom of expression on the Internet, particularly through its jurisprudence limitation on the short and the rule of law in 1881 on section 1382 of the Civil Code.
2.2.1. The short statute of limitations applied to the Internet
It is applied on Internet prescribing short of legal action under Article 65 of the Act of July 29, 1881 which provides that public action and civil action arising out of offenses under this Act may After three full months from the date they were made. This period ensures a balance between freedom of press, right of individuals and public order. The judges and the doctrine had been reluctant to run between the limitation period on the day of the launch of the document or the day when it was removed from the server. In the first case, the content may remain contentious whereas in the second offenses are barred until the information at issue are online. The Court of Cassation ruled in favor of freedom of expression18: the starting point of the period corresponds to the first act of publication, precision made that this date is "the date the message was first available network users. " The exercise of freedom of expression and, more specifically, freedom of press does not suffer a derogation on the Internet.
Perben II Act of March 9 2004 has sought to address the issue had been raised this short limitation related to the persistence of racist or xenophobic, as the deadline was extended to one year for crimes of incitement to hatred, discrimination and racial violence, for contesting crimes against humanity, defamation of racial insult or racial in nature (article 65-3 of the Act of July 29, 1881). But as the law of 30 December 2004 was not inserted in Article 65-3 of reference to gender, sexual orientation or disability is the period of three months applies matter.
2.2.2. Exclusion of section 1382 of the Civil Code in cases of abuse of freedom of expression repressed by the law of 29 July 1881
To prevent circumvention of the 1881 Act supports the freedom of the press, jurisprudence19 does not allow the victim of an offense under the press law of 1881 to seek compensation for damages on the basis of Article 1382 of the Civil Code. This case is undoubtedly more conducive to freedom of expression insofar it becomes impossible to avoid the exceptions to the law of the 1881 Act which have been spent by it in favor of freedom of expression.
If the prosecution on the basis of Article 1382 are now excluded, this does not apply to Article 9 of the Civil Code, the right to privacy with apparently the same normative value as the right to freedom of expression20. The 1881 Act is not the exclusive basis against abuses of freedom of expression, since these abuses when they violate the privacy, can be repaired on the basis of Article 9 of the Code civil21.
freedom of expression guaranteed on the Internet will remain as security considerations will not come to impose an exemption scheme. We must remain vigilant. Keep in mind the words of Senator Pierre Hedgehog, co-rapporteur of the bill on first reading the LCEN Senate: "Freedom is the rule, the restriction except police."
1. Freedom of expression is part of the block of constitutionality. It is guaranteed by Article 1 of the Constitution and has been recognized as having constitutional by the Constitutional Council (CC, 20 janv.1984, Academic Freedom: OCSP).
2. Articles 9, 10 and 11 of the ECHR and Article 2 of the Additional Protocol of 20 March 1952.
3. Gilles Lebreton, Civil Liberties and Human Rights, Armand Colin, coll. U Public Law, 2005, p. 372.
5. On this subject, see Agathe Lepage, Freedoms and Rights, Litec 2002, § 78-90.
6. Claude Gubler, The Great Secret, Editions Plon, Paris, 1996.
7. ECHR, Handyside cons UK, 7 December 1976, ECHR, Müller cons Switzerland, May 24, 1988.
8. ECHR Isorni and cons Lehideux France, September 23, 1998; ECHR, Garaudy cons France, June 24, 2003.
9. ECtHR, Jersild cons Denmark, September 23, 1994.
10. ECHR, Sunday Times UK cons, April 26, 1979 (prohibition press articles to be published and
tends to reveal information relevant to an ongoing trial).
11. See in this sense: ECHR, Murphy cons Ireland, July 10, 2003; ECHR, Otto Preminger Institute, 20
September 1994 and recently confirmed by: ECHR against Turkey IA, September 13, 2005; contra: TGI Paris, Case of "Mohammed cartoons", March 22, 2007: a casuistic reasoning, the district court acquitted the director of publication of Charlie Hebdo.
12. CA Paris, 4 November 2006, Case AAARGH, available Juriscom.net \u0026lt; http://www.juriscom.net/jpt/visu.php?ID=866> ;: The appellate court upheld the requirement that ISP filtering will have to prevent access to the site revisionist Aaargh, hosted abroad. 13. United-States District Court for the Northern District of California, San Jose Division, November 7, 2002.
15. DC, December No. 2004-496 DC, 10 June 2004, OJ 22 June, p. 11182. The concept of manifestly unlawful, read: Lionel Thoumyre, "How French hosts have become judges manifestly unlawful" Juriscom.net \u0026lt; http://www.juriscom.net/int/visu.php?ID=561> ; ;; Etienne Wery, "The notion of clearly illegal content submitted to the President of the Court", Law & New Technologies \u0026lt; http://www.droit - technologie.org/1_2.asp? actu_id = 1243> . 17. CA Paris, 14th ch., Sec. A, 31 October 2001.
18. Crim., October 16, 2001, No. 00-85728: Bull. Crim., No. 211, p 676, available on Juriscom.net
19. AP July 12, 2000. Reaffirmed on several occasions, most recently by Civ. 1st, September 27, 2005: v. not. E. Dreyer, "Decline of the Civil Liability Release", D. 2006, doct. p. 1337.
20. Civ. 1st, July 9, 2003, stop "Chandernagore" Bull. civ. I, No. 172; D. 2004, som. 1633, obs. Ch Caron.
21. Civ. 1st, February 7 2006: Bull. I, No. 59, p. 59; Gazette du Palais, 27-28 April 2007, p. 26.
Published on the website Juriscom.net on 06/06/2007
