THE REGULATION OF ILLICIT MESSAGES DIFFUSED ON THE INTERNET

Master of Arts, ESST
Thesis submitted by Lionel Thoumyre
ULP & URS, Strasbourg
Facultés Notre Dame de la Paix, CRID, Namur
Supervisor: Prof. Yves Poullet
Namur 1996
Word count : 17 300

Introduction

    Since the conception of the first computer after the World War II1, new digital technology has provided fundamental changes in our conceptions2 and behavior3. In fact, most of our professional and spare-time activities imply the use of digital technology on which new uses have cropped up, e.g. working on a computer, using a digital telephone, or exchanging messages and reaching all kind of information on telematic services. The democratic nations had to adapt their legislation to this new technical environment in some specific fields such as Privacy4 or Copyright5. While the computer era already modified some of our traditional legal framework, the advent of "Information Superhighways"6 could require a real innovation in legislation7, or in the implementation of norms.

    In fact, the numerous judicial issues raised from the spread of certain messages on the Internet demonstrate the difficulties linked to the regulation of such a network. For instance, two recent cases about the diffusion of neo-Nazi8 and sexual explicit9 material in France, leads to the question of so applicable law and the liable persons. Is our current legal system applicable to the Internet phenomenon ? If so, which regulation should be applicable and how could it be implemented ? By answering these questions, we will know whether our substantive law is capable of regulating messages on the Internet and if it is capable of being applied. But, the analysis of these judicial issues will come up against the technical and social characteristics inherent to the Internet, that we shall now understand through the story of the creation of the Internet.

    The Internet is often presented as foreshadowing the "Information Superhighways". This concept has been put forward by Mr. Al Gore, Vice-President of the United States who has promoted since 1978 the project to link together every individual or community (administrations, universities, schools, enterprises...) with extensive computer and telephone networks10.

    Ten years before, a computer network impervious to any massive disturbance, named ARPANET, was created by university researchers for the Department of Defense. The Army’s aim was to elaborate an always run communication system able to take over in case of one of its regular sites destruction. With such a network, the information do not have to go through a specific site, it can take any other path to reach its goal. Later, a system that enabled to exchange data from remote locations by using a common standards protocol11 was introduced. It was quickly recognized as a powerful research and communication tool and extended to universities and corporations12.

    Outside the US, many countries participated in these pioneering works. But the first networks, built in a dispersed order, were not all compatible. In 1974, Vint Cerf and R. Kahn published the Transmission Control Protocol (TCP) which included what would become the Internet Protocol (IP). The name Internet was created. The TCP/IP allows to all networks to communicate together13.

    In 1980, DARPA14 decided to place the protocols as public property. Since that time, its usage is free for everyone. This decision reveals the ideology surrounding the elaboration of the Internet : it was developed by scientists, researchers and users who were free from market constraints. They enjoyed the government oversight and subsidy and were not submitted to pressures of commercial ventures15. Therefore, universities and researchers were able to impose their community ideals, based on the sharing of information, regarded as the only mover of progress16. People creating the Internet believe that access to computers should be unlimited and total and all information should be free. They promote decentralisation as the best solution against any central authority likely to interfere with the free sharing of information17. According to Philippe Breton18, the scientific faith in the virtue of communication comes from the cybernetic ideology of the 50's, promoted by Norbert Wiener, and certain science fiction authors19, who believed that a better spread of information, thanks to new communication machines, would provide a better social harmony. But this "utopia" was soon taken over in the political discourses.

    Such ideologies could not touch the Libertarians in the least. Since 1971, they have pushed in favour of effective civil liberties and personal freedom, non-intervention, free trade, and free market economy, as prescribed by America's founders20. Therefore, the safeguard of "Freedom of Speech" on the Internet became a favourite theme : according to them, the total freedom of speech that reigns on the global network does not suffer any exception, it is a precious common property21; this sounds like the scientific discourse.

    But ideological discourses are likely to hide more concrete interests. The Myth of the Global Village supported by the numerous discourses of Vice President Al Gore22 makes his "National Information Infrastructure Policy" popular in the end. But this document mainly aims to stimulate the development of tomorrow's large multimedia networks and thus to favor commercial interests. In the meantime, commercial ventures developed on the network. Little by little the Internet became a marvellous advertisement and mail-order device.

    Today, the Internet stands tall with fifty-thousand networks and access to about five million computers. The number of users is roughly thirty million23. But, in concrete terms, how can a user receive and spread information through the Internet ?

    The connection to the "network of networks" goes through an access provider which could be a private enterprise24, a university or a public or private partner. Some of them constitute a full network and offer specific services to their subscribers. Those networks can grow independently of the Internet but always provide access to it. To be connected, a user needs a computer, a modem and a subscription to an access provider, at a minimum cost of 20$ per month for a limited time of connection in Europe25. Each time he connects, he uses the telephone network and thus has to pay the standard tariff of a telephone call. Individuals can also access the Internet through many local libraries, which provide direct or modem access at no cost to the individual user, and through the increasing number of "computer coffee shops", which provide access to the network for a small hourly fee, i.e. about 10$ per hour26.

    Through the Internet, the user can send an e-mail27 to anyone who is connected, post a message in a BBS28, debate in real time with the Internet Relay Chat function (IRC)29, or participate in discussions held in a Newsgroup30 and can have access to the World Wide Web31. Now every one can create his own web site32 and spread any kind of messages across the network.

    The notion of message is clearly linked to those of communication33 and information. The invention of the telegraph and the telephone, followed by others like the wireless radio, have called attention to mankind as a communicating creature. The telegraph model of communication, introduced by Claude Shannon34 and Warren Weaver, was in effect for several years. It contains five elements : an information source, a transmitter, a channel of transmission, a receiver, and a destination, in linear order. Electronic messages travelling along this path, are changed into electric energy by the transmitter and then are reconstituted into intelligible language by the receiver. This model, which was also applied to other types of communication, was replaced by other models, such as Newcomb’s one35, that permit more flexible accounts of human behavior and its variable relationships. Nevertheless, the basic plan proposed by Shannon still has the attractive advantage of being able to simply explain the way to set up the communication between computers. The Internet could be understood as the path between the transmitter and the receiver, both of which are computers.

    Until now, we employed the term "message" as a synonym of communication. In fact, the concept of communication is linked to the action of transmitting and receiving a message, whereas message refers to the information conveyed by the act of communication. As a result, the message brings information36 to those who receive it. We would like to consider that messages on the Internet consist mainly of all meaningful information spread from public sites, BBS, Newsgroups, and all correspondence between individuals or individuals and groups, according to e-mail or chat-rooms.

    As a communication tool, the Internet could be assimilated to other media, and therefore be regulated in our current legal framework. But the Internet incontestably presents particular characteristics in comparison with traditional media and may constitute a world apart that could be free from regulation. Through two chapters, we will analyse whether the Internet has to be regulated and if the current regulations are sufficient to apprehend the Internet phenomenon37. Thus, we shall first justify the regulation of messages on the Internet in the context of Freedom of Expression, by taking into account its characteristics (Chapter I). If it is proved to be possible and legitimate, it will be necessary to investigate whether our legal framework is adapted to regulate such messages or require some substantial modifications (Chapter II).

Chapter I - Justification of a regulation applicable to the Internet

Section I - Appraisal of a new regulatory field

    According to some authors, since a new culture is emerging from the Internet out of our physical borders, the existing regulations in our cultures, individualized by national borders, should not be applied to the virtual world of the Internet38. But what exists in the virtual world seems to encroach upon our physical territories, and thus could justify a regulation.

    The virtual world of the Internet allows its users to visit commercial, educational, leisure, or news sites on the web, access to data bank services, discussions in a chat room39, or post an announce in a BBS. Thus, the Internet essentially provides new types of communications, of which e-mail is definitively the most well known. It became more and more popular because it allows the sending of messages far more rapidly than by traditional mail and has the advantage to be an asynchronous medium of communication40. According to Christian Huiteman, certain telephone uses are going to be replaced by e-mail41. In fact, the use of e-mail involves a real "life-style"42 and announces the fact that a new culture43 is emerging44 from the Internet, e.g. some authors indicate that users of the Internet constitute a community, and beyond that, a culture, by using the same words or signs45, exchanging addresses to travel across the network, and sharing same experiences in the virtual world46. In addition, Internet users have their own conventions, such as the "Netiquette" or the "flaming" describing the implementation and violation of behavioral norms47 that are components of the concept of the habitus48, which Bourdieu sees as a determining element of what is called a "culture". Despite these norms, the virtual world offers the ideal environment to feel free on the Internet.

    The advent of the informational age already prepared people's mind to the virtual world49. According to the Oxford dictionary, "virtual" means "that is so in essence or effect, although not formally or actually"50. Thus, virtuality is a concept opposed to reality. For instance, the e-mail address is virtual because although you know your own e-mail address, "you do not know where it physically exists51... whosoever sends a message to that address has no idea of where either it or you might be"52. An e-mail address only shows that you have an account53 with an access provider.

    As a result, the virtual world, also called "cyberspace"54, is a hidden universe behind the automatic teller machines, telephones, and computer terminal. Thus, anybody can send messages in full anonymity55 behind its screen, without implicating its actual body56. Furthermore, the status57 of the Internet is still not clearly defined in our legal systems, which reinforces the idea that it is a world apart.

    This is why users feel free58 on the Internet and use networks to do in the virtual world what is not tolerated in the real world. Therefore, abuse of impunity exists in the virtual world. Certain spread messages that are likely to insult, hurt or shock somebody. For instance, a web site called Santa Cruz, located in California, posts material on the Internet that questions the existence of the holocaust59. Such messages are not neutral and overhang the virtual world limits by affecting sensibilities of physical persons. We shall ask ourselves whether the cyberspace is so virtual.

    In fact, certain actions performed in the cyberspace are able to leave some traces in our physical world60. Even if e-mail is a paper-less form of communication, it does not permit real anonymity; it creates an electronic trail of messages that can be used to monitor individuals who send them. In this manner, department supervisors of certain firms can monitor e-mail messages sent by their employees61 and authorities can intercept litigious messages and impose penal norms62 upon the senders. This brings the sender back to its carnal station, where anonymity vanishes, which seriously questions the virtual characteristics of the Internet world.

    Each time an individual makes a transaction or researches information on the Net by using its e-mail address63 or its credit card number, he lays down electronic traces that can be stored by different organisations, such as commercial groups, whose aim is to establish a complete file concerning their potential clients. The receiver of such information, whose goals are not virtual, is rather likely to pursue concrete interests, i.e. the cyberspace helps to define a better marketing policy, by taking into account uses, tastes, and characteristics of their potential real clients. These ventures also use the cyberspace to make real transactions, through classical processor of mail-order.

    Evidently, the virtual world is not a world apart because of its numerous implications in our real world cultures. We cannot reasonably deem that cyberspace is free from regulation64. But the "policy-making practices" will have to take into account technical characteristics of the Internet, which could impede an effective regulation or make it inopportune.

    The structure of the Internet resembles social and biological complexities defined by Edgar Morin, as acentric, polycentric and centric65. But only the two first components of the definition are applicable to the Internet, which has no centre66. Because this network has several centres that are not submitted to a "nervous centre", if a part of the network is damaged, what is left will not be affected. However, the Internet is also acentric and does function in an anarchic manner. Regulatory power should consider it as a global entity. In fact, even if service providers can prohibit the access of certain of their own sites, they cannot impede individuals to reach litigious services that exist on other parts of the network. If you can connect to one part of the Internet, then ultimately you can connect to all of it67. Now, the Internet can be compared to the hologramatic principle68 according to which each part is in the whole, and the whole is in each part at the same time. Thus, if some material still exists somewhere in the network, every "cell" of this "organism" would have access to the information it is searching for, as if it were rooted in itself. The Internet transcends national boundaries and makes local censorship almost impossible69.

    However, the Internet seems to become more polycentric than acentric since service providers are governing increasing parts of the network, which boundaries do not correspond to national frontiers. Thanks to this situation, governments can act at the level of service providers, but they have to take into account the international environment : if a nation decides to block access to illicit material spread from the own service providers’ services, every country connected will suffer the consequences of this act, e.g. facing the situation raised by an investigation into on-line pornography by law enforcement in Munich70, Compuserve On-Line Service has blocked access to his 200 sex-related Internet discussion forums. Compuserve action has consequently affected not only its German subscribers, but all four million of its members world wide71. For these reasons, some authors are noticing that it is no more relevant to talk about the Global Village because "recent moves by the US, Germany and other nations to censor the Internet demonstrate how the supposedly border-less flow of information over the net is still very much subject to the decisions and actions taken by individual nations"72.

    Because of the decentralized and global nature of the Internet the states have to be very careful before acting blindly. They should take into account the international environment inherent to the Internet phenomenon and the fact that it is impossible to locally block the access to illicit messages spread through the whole network. The development of a new model for regulating messages on networks seems to be crucial to avoid unpleasant consequences of local regulations. Thus, every nation's government should adopt a new regulatory paradigm, notably by taking into account the fact that the Internet is an interactive medium that enables self-regulation73.

    What is the main difference between the Internet and the other media74 ? The Internet is said to be the interactive medium par excellence. Interactive means that the user has the ability to influence the flow of information or to modify its contents75. But the Internet is not interactive by itself : the amount of control the users have is due to the computers themselves, which enable the users to send and receive information through the network. In fact, many other media allow a kind of interactivity, from the selection of options to searching for links to the input of new information. For instance, the main difference between television and the Internet is that the latter provides a mechanism so that the user can decide at any time to make different choices, without depending upon a fixed program. Moreover, the user can import new material and modify the structure of proposed information, e.g. by establishing new links among system elements. The Internet is not only a one-way public ommunication device. It does accept information in the opposite direction : each user can communicate with the public. Thus, Internet services are not invasive as radio and television programs, because their users have a better control on the flow of information.

    Therefore, interactivity also means that an Internet user can choose the components and the programs thanks to which his computer allows him to access the global network. Because individuals as well as SYSOPs76 have great control on information, software and hardware, a self-regulating culture might develop on the Internet. Such a culture emerged not only because of the lack of state controls77, but also due to the interactive environment of the Internet, which contributes to enforce the various form of the "Netiquette"78. For instance, "flaming", that punishes79 bad users, could consist of a flood of e-mail from other users in the mail-box to the "sentenced" person so that his address becomes unusable80. Such an action would have been unthinkable and impossible with traditional media, because users cannot spread information in the opposite direction.

    Some other initiatives were launched to avoid speech which causes injury81 or obscene and indecent material. A certain number of Newsgroups adopted the moderation system, according to which all the messages forwarded to other members of the group are transmitted via a "moderator". This person acts like an editor, weeding out insults and making sure that contributions are relevant to the group82. Messages can also be controlled using new software which filters out unwanted people or information83. These programs can be adopted by users and SYSOPs and thus provide protection at the distribution level and reception levels84.

    In view of this self-regulation, is it yet opportune to implement our laws to regulate the cyberspace ? Some people think the Netiquette is sufficient, and trust in the individual virtues85. Nevertheless, "individualism is a two-edged sword"86. Of course the Internet was created and designed by university researchers, who were more likely to respect the Netiquette87, but the network has become a consumer good88 and there are no doubts that the above mentioned abuses would not stop. Furthermore, other aspects of the self-regulation are not convincing. For instance, it is virtually impossible for SYSOPs to police, screen or block all the imagery and texts posted to their systems. Software filters used by SYSOPs or families attempt to identify obscene postings by using word identifiers that are unable to distinguish between material which appeals solely to prurient interest and information of literal, artistic, or scientific kind89. However, some web site creators' initiatives recently appeared : many locations' home pages were labelled so that a sensitive person could be aware of the shocking material contained in the following pages. These home pages could be easily recognised by a screening software90.

    The regulatory policy should take into account these characteristics and, in general, should adopt an analysis grid to regulate media in function of their interactive possibilities. At the first level, that we propose to call invasive, television and radio call for basic decision to participate : turning on the set and selecting a channel. When the set is on, the spectator’s mind is wide opened to receive information. Of course, individuals can select programs indicated in T.V. magazines, but this calls for another medium : the press. They can also participate in the broadcast by using the telephone, but never straight through the set. At the second level, called participative, the press requires upper participation. The reader can select more precisely what he wants to read in a book shop or library, and does not depend upon a program. If his reading is interrupted, he can return to it whenever he wishes. This is the same for videos, but the press requires a reading effort. Nevertheless, the reader cannot modify the content of the material he reads and still depends upon a limited number of chapters or articles. At the last step, the interactive one, the Internet allows a great level of control for the above-mentioned reasons. From the first to the third level, the regulation should be less and less restrictive, primarily because the interactive environment gives more responsibilities to individuals. Some authors deem that such a situation relegates the legislator to a subsidiary intervention : he could mainly deal with messages that seriously question the national security91, and promote the elaboration of technical devices able to give individuals and access providers a better control on other messages spread through the network. Individuals should have the freedom to decide what kind of information they want to reach. They can ask access providers, by means of contract, to have only access to certain material. In a kind of manner, self-regulation devices make it feasible.

Section II - Regulation faces Freedom of Expression

    According to the article 19 of the Universal Declaration of Human Rights92 (U.D.H.R.), everyone has the right to freedom of opinion and expression; to summarize, this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any medium, what includes the Internet, and regardless of frontiers. All signatory countries93 should attend to enforce these rights, but their bearings seem to be essentially theoretical94.

    The European Convention of Human Rights95 (E.C.H.R.), associates both freedom of opinion and expression under the generic term of the "Right to Freedom of Expression"96. Each signatory state has the duty to adapt its legislation in accordance with the terms of the Convention97. The European Court of Human Rights98, located in Strasbourg, ensures enforcement of the Right to Freedom of Expression, which became less symbolic99. It should be underlined that many states have already sanctioned it, e.g. article 10 and 11 of the Declaration of the Rights of Man and of Citizen, approved by the National Assembly of France in August 1789, according to which the Freedom of Expression "is one of the most precious of the rights of man"100. Outside Europe, the Right to Freedom of Expression exists in the USA since 1791 under the expression "Freedom of Speech", which appears in the first of their constitutional amendments101. The importance granted to such a freedom comes from the idea that a democratic nation cannot be conceived without the possibility to express, impart, diffuse or receive political opinions. The pluralism principle requires such a freedom, otherwise the vote would be meaningless102. Education of citizens is also concerned by the right to spread and receive information. They are likely to be affected by political, social and advertising messages, every day. In fact, the spread of information is of public interest, and states cannot ignore it. They sometimes need to control the content of certain messages diffused through radio, T.V., press, and yet the Internet. The Freedom of Speech is a "regulated freedom", that supposes exceptions to its exercise.

    The content of certain public messages is susceptible to come up against sensibilities, reputation or, in general, the rights of individuals. In our democratic states, the exercise of freedom cannot pass over bounds fixed by law. The article 4 of the French Declaration of 1789 stipulates that "liberty consists in the freedom to do everything which injuries no one else"103. This resembles the purpose of the article 19.2 of the U.D.H.R. where the exercise of the Right of Freedom of Expression is subjected to restrictions that are provided by Act, and are necessary, first "for respect of the rights or reputations of others", and secondly "for the protection of national security or of public order, or of public health or morals". It should be pointed out that the above mentioned is not in discordance with the Ten Commandments from the Computer Ethic Institute, e.g. the first one stipulates to not use a computer to harm other people, the forth to not use a computer to steal, and the ninth to think about the social consequences of the program you write. It is still accepted in the Internet community that the exercise of the Right to Freedom of Expression through the use of new computer media also includes some duties. But those Ten Commandments have no real bearing such as the U.D.H.R.

    The E.C.H.R., more likely to be enforced104, tempers article 10 principle of freedom by establishing two reserves.

    The first allows the states to require a license for broadcasting, television or cinema. France has opted for this system since 1909 with the regulation of the movie industry105. An Act of April 3, 1958 and two decrees of January 18, 1961 require a certificate that is delivered after examination106 of several authorities, for diffusion of movies on the French territory. The French Council of State is competent to verify whether a movie may cause sufficient damages to general interests to justify a public liberties' breach107. Thanks to the control of the Council of State, the French regulatory policy is able to respect as far as possible the conditions of legality, legitimacy and proportionality as defined in paragraph two of the article 10 of the E.C.H.R., which includes the second reserve.

    The latter consists in authorizing states to submit the freedom to certain formalities, conditions, restrictions and penalties. But these measures should be justified through three criteria : they must be prescribed by Act, they must be proved to be necessary in a democratic society108 and be justified by certain legitimate purposes limited in number109. The French measures illustrates such exceptions to the Freedom of Expression110. According to the French Act of July 29, 1881, the press is supposed to be free111. In principle, no control is required before the diffusion of any information, even if certain formalities existed previously, such as a declaration that must be made before the public prosecutor office to publish a periodical. But the freedom of press is not total. The criminal law represses press offenses, and allows seizures and censorship of certain publications, essentially those concerning youth, in order to protect children and teenagers against publications that present crime, lying, theft, laziness, cowardliness, hate, and debauchery in a favorable light112. The French Act of January 4, 1967 also forbids booksellers to sell such publications to minors. Nevertheless, the principle remains that of freedom before publication. This system is less restrictive than the broadcasting’s. Why does such a difference exist ? The signatory states were aware of the fact that information spread through T.V., radio and, in a certain extent, the cinema are more invasive than those diffused by the printed press113. They adopted a regulation suited to the characteristics of the media in use. It will have to be the same for the Internet.

    Before the Exon amendment was passed114, Vice-President Al Gore told Congress that the CDA "is not the way to lead the world into the information age"115. By that time, President Clinton signed the last version of the Exon amendment on Thursday, February 8, 1996, but hoped it will be declared unconstitutional116. In substance, the CDA modifies the Telecommunications Act of 1934 to prohibit the use of a telecommunications device to make or make available an obscene communication, or make or make available an indecent communication to minors117. This text is specifically aimed at the Internet, under the term "interactive computer service".

    In fact, the Supreme Court Doctrine allows such restrictions provided they are urged by a legitimate aim and are not too restrictive122. For instance, the Supreme Court deems that obscenity is not protected by the Constitution because of its offensive nature123. According to Miller v. California (1973)124, the definition of obscenity requires the reunion of three criteria125 that must be analyzed in a particular local context126. But the definition of obscenity could have about fifty different interpretations, at least one for each state. This situation could involve great difficulties for information spreaders on the Internet to fit material to the different community standards. Controversy to obscenity, indecent material is protected under the First Amendment. Nevertheless, there is a need for a motivation of the limits : the Supreme Court authorizes laws to pass over the Freedom of Speech, when they indicate a sufficient governmental interest, such as the protection of children. The FCC v. Pacifia Foundation (1978), and Sable Communications of California, Inc. V. FCC (1989)127 decisions established the principle that the federal government has a compelling interest in shielding minors from indecency128. Thus, the Supreme Court approach is not so far away from the text of the E.C.H.R. that allows restrictions to the Right to Freedom of Expression provided they are necessary in a democratic society and justified by certain legitimate purposes. Moreover, the Supreme Court also requires that the less restrictive alternative should be adopted129 : it made clear that government may not bar non-obscene speech generally if less restrictive alternatives are conceivable so as to restricting children only 130. The American regulation of indecent speech is not irrelevant to the protection of health and morals provided in the E.C.H.R. Thus, the CDA, which aims to regulate speech on the Internet, would be legitimate regarding the existing regulation of other media and the Supreme Court Doctrine.

    But, some organizations interested in safeguarding public liberties131, deem that the CDA violates the First Amendment by being both vague and overly broad. It would be exceedingly difficult for the interested person to know whether they are in a reliable way132. In fact, as it was defined in FCC v. Pacifia Foundation, indecent speech is that which "describes, in terms patently offensive as measured by community standards (...), sexual or excretory activities and organs (...)". Internet users and providers are afraid that this term could be applied to scientific, medical or humouristic publications133. But, regarding the Senate debate, the term "indecent" would not be unconstitutionally vague, because the indecency standard is specifically limited in its reach i.e. the protection of children, what was recently confirmed by Action for Children's Television v. FCC (1995)134, and this term was already applied without rejection in other media contexts such as telephone or radio broadcasts135. Furthermore the essence of the second contested term, "patently offensive descriptions of sexual and excretory activities", remained constant in the judicial precedents136.

    Whatever is said about these terms, many other arguments tend to reject the constitutionality of the CDA137. Certain think the CDA does not sufficiently take into account the peculiar characteristics of the Internet by adopting the Pacifia's approach to the regulation of indecent material. The case dealt with radio broadcasts, whereas Internet services are not invasive in this same manner138. Minors are not swamped with indecent material and must seek out information. Nevertheless, the CDA is also inspired by the Sable Communication case, which dealt with "dial-a-porn" interactive telephone services139. It simply required restricting access to indecent material for adults only. In fact, respect of the law will depend on technical solutions, in this manner, the CDA encourages the development of technical device likely to control access of litigious sites. That solution could be considered as a constitutionally permissible alternative.

    But, is that the less restrictive alternative140 ? The ban would be unconstitutional if such alternatives existed. We saw that filtering software can be installed on computers enabling families to prevent certain material from entering their homes. The Family Empowerment Act proposal, sponsored by Representatives Cox and Wyden, encouraged access providers and parents to use screening software so that children could be protected from indecent material. That bill was not focused on regulating or eliminating the litigious material from the Internet and eradicated the constitutional problems inherent to the CDA141. It could have been the "less restrictive alternative", but the Family Empowerment Act was not adopted. Of course, screening software is not very efficient, but neither is the CDA : despite the new dispositions, it will always be possible to connect oneself on a remote location to access foreign indecent sites142, which are out of the field of American authorities. From this point of view, although the CDA takes into account the new technological possibilities, it is not entering in the regulatory paradigm as defined by Reidenberg143, because, according to A.C.L.U. lawyer Chris Hansen : "The government's proposal, and the law itself, does not take into account the global nature of the medium"144, which allows individuals to reach any kind of information spread world wide since they are connected.

    However that it may be, the CDA does not prohibit other abuses that occur on the Internet, such as revisionism material or drug apologizing. Does it mean that such messages can be simply regulated with substantive law ? But the main question is : why did the CDA focus on computer network sex issues ? Anne Wells Brandscomb puts forward many arguments to answer this question. She explains first that the pornographic and indecent issues are often the first problem met on new media, mainly because the entrepreneurs, interested in promoting a new information technology, try to find sufficient content to capture enthusiastic buyers of their products, e.g. the French Minitel initial success would have been due to the discovery by French populace that the Minitel was an interesting tool for arranging sexual rendezvous. Secondly, social pressure groups incited such a regulation, e.g. religious right associations believe that viewing pornographic images may result in damage to adults as well as to children; and women’s right groups claim that any portrayal of degradation or domination of females, or any pornography, does damage to the social goal of women’s equality. But the legislator also had to take into account the civil libertarian’s associations, who fear that "censoring lurid images invades an individual’s private domain and violates individual autonomy"145.

    Now that the regulation is proved to be necessary and legitimate, provided authorities respect the general conditions above mentioned, we should analyze whether our legal framework is adapted to apprehend material that are not in accordance with the legitimate purpose followed by states146, and if law can efficiently be enforced.

Section I - Delimitation of a regulatory framework

    Concerning the private form of communication, Article 8 of the E.C.H.R. states that "everyone has the right to respect for his private and family life, his home and his correspondence". Hence, the regulation of private messages must respect the principle of the right to live free from any interference by the state in one's privacy (principle of secrecy of correspondence). The Fourth Amendment also sanctioned this principle : "The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, shall not be violated..."147. These principles are ordinary applied to the regulation of messages exchanged through the telephone or sent via traditional mail. In contrast, Article 10, as well as the First Amendment, aims to protect the principle of Freedom of Speech, and that regulation of the radio, T.V., press or cinema must respect148.

    Right to privacy and to Freedom of Speech are both concerned with the use of the Internet. Although it is a single medium, it enables two kinds of communications149. At the simplest level, the Internet provides asynchronous one-to-one communication, i.e. e-mail can be sent and stored in an electronic mailbox until the receiver accesses it. Hence, it takes the form of a traditional textual message such as a letter, a fax or a telex. It also provides a real-time communication, called 'Chat' (or Internet Relay Chat) concerning textual communications. In this case, the Internet functions as a telephone device.

    C. Lamouline and Y. Poullet propose to adapt a system of private communication of messages that are transmitted to a specific address or "closed" group, revealing a certain tie between its members152. Thus, messages that are addressed to a person, or a "closed" group of persons, through an e-mail function, BBS, or Newsgroup, will be deemed as private communication.

    A legal system may be implied from this status. Messages in question shall be protected under the principle to the Right of Privacy. Although this study does not intend to deal with private messages, it should be mentioned that Article 8 of the E.D.H.R. protects the individuals Privacy from the interference by a public authority153. The European Court of Strasbourg specifies that states are also obliged to adopt measures to prevent illegitimate intermission in the private life of individuals154. The French Act of 1978 on Data Processing and Individual Liberties was adopted in order to protect privacy of individuals from the disclosure of his personal data that may also impair his reputation155. It should be mentioned that the privacy may be concerned with public messages when one reveals personal data to the public. What about public communication ?

    On the other hand, messages that are not addressed to a determined person or group fall within the scope of public communication. This is the case for electronic publishing, real-time conferences and chat sessions when they do not require any selective subscription156, public messages posted up in a BBS, and public discussions held in a Newsgroup, without limitation of participants.

    Because our legal framework provides regulation of litigious messages regardless of the medium in use, it is still adapted to apprehend what occurs on the Internet through existing regulations157. Strictly speaking, abuses in cyberspace constitute no new infringements.

    Messages on the Internet can infringe the right or reputation to others, as well as threatening the national security and public order, or morals and public health158.

    The diffusion on the Internet of the book about François Mitterrand banned from the sale159 concretized the judicial issues involved by abuses that occur on cyberspace. The Committee of the National Publishing's Union decides on February 16, 1996 to lodge a complaint against Pascal Barbraud, considering that the exploitation of a work on the Net, without the authorization of the eligible party, caused a loss to the publisher's community160. How is this problem solved in law ?

    Many countries adopted laws on the protection of authors rights, which were articulated by the Berne Convention of 1886 and the Universal Copyright Convention of 1952161. To be protected , the works must generally respect two kinds of conditions : first, the conditions of substance required that the work has to be original and fixed, and second, the conditions of form required that the work must be registered162. For instance, the French Act of July 3, 1985 that modified the law on the Literary and Artistic Property of 1957, protects the patrimonial, intellectual and moral rights attached to the "works of mind"163. The representation or reproduction of these works requires authorization by the eligible party, who is protected under civil and penal law. For example, with respect to criminal prosecution, Article 335-3 al 1 of the French Code on Intellectual Property of 1992 represses the pirating of editions as define as any reproduction, representation or diffusion, through any device, of a work protected by copyright. The diffusion of a copyrighted text on the Internet represents a reproduction, since the work first has to be digitized or wrote out and stored. Article 28 of the French Act of 1985 defines reproduction as material fixation of a work according to any process that enables it to be indirectly communicated to the public. The difficulty will be to demonstrate that the work was indeed "materially fixed". But the doctrine considers there is no doubt that the storage in a computer system constitutes a material fixation, because this is the case for software164.

    The subsection of Article 101 (a) of the American Copyright Act is a little more restrictive because it requires that the copy of the work must be "sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory a duration". But, in a recent case, Religious Technology Centre and Bridge Publication v. Netcom On-Line, Inc (D.C. 1995)165, the judge Ronald M. Whyte deemed that copies were created by the defendant's act digitizing portions of the plaintiff's works and storing it in storage devices. Although the messages remained on the system for less than two weeks, they were deemed sufficiently "fixed" to constitute copies. We only dealt with copyrighted text, but many other issues exist, including copyrighted software, pictures, sound, or data base166.

    An anthropologist employed at the University of Western Australia, was accused of sexual misconduct on the DIALx science anthropology computer bulletin board. It was estimated that more than 20,000 academics and students of most major universities throughout the world would have access to the BBS. This kind of situation frequently occurs in the cyberspace. Is it possible to harm others with impunity in the cyberspace167?

    Real world law protects reputation to others against publicly uttered defamation and insult. According to Article 29 of the French Act of 29 July 1881, defamation consists in all allegations or imputation that breach honor or consideration of the person or its body to whom the fact is imputed (al.1). Defamatory material constitute an offense provided it requires the conditions of publicity, otherwise it is only a contravention168. Publicity could consist of discourses uttered in a public place as well as printed words, pictures, drawings or paintings, distributed or exposed to the public169, which include all kinds of defamatory messages spread through the Internet. From that moment on the culpable intention condition is fulfilled, there is no doubt that the law on defamation can be applied to public messages on the Internet170. This intention is always presumed and does not require to be expressly noticed171, but it is likely to vanish if the good faith of the slanderer is proved172. It should be noted that law allows exceptions to penal liability of the slanderer when the defamation concerns public figures, public officials, or matters of public interest, so that the democratic debates are preserved.

    In the USA, the condemnation of defamation constitutes a stretch to the Freedom of Speech. Therefore, the Supreme Court makes a balance between open debate and freedom from defamation to establish an "actual malice" standard of liability173. But the generic term of defamation includes two different concepts. American law distinguishes libel from slander. Publication in a transitory form, such as spoken words, is slander, whereas libel, considered more harmful than speech, is embodied in a physical form or "by any other form of communication that has the potentially harmful qualities or characteristics of written or printed word"174. Thus, printed word on the Internet are libel, provided they have a sufficient degree of permanence175, otherwise they are slander176.

    Eventually, every defamatory message that is posted in BBS or sent to a Newsgroup, or via e-mail, and spread from public web-sites, is likely to be repressed by our real world law, which was demonstrated in a recent US Internet Case, Stratton-Oakmont v. Prodigy (1995)177, that condemned the access provider for the diffusion, through its server, of defamatory messages.

    Some revisionist militants are not afraid of widespread material that are not in accordance with the legislation of most of our democratic nations which criminalize racist messages and apologies of war crimes178. For instance, Article 1 of the Belgium Act of 30 July 1981 punishes the incitement to racial hate, and that of 23 March 1995 represses the negation, downplaying, justification or approbation of the Nazi genocide during World War II. France also criminalizes such actions. The Act of 29 July 1881, Article 24, punishes those who incite discrimination, hate or violence towards a person, groups of persons according to their origins (...) and Article 24 bis179, punishes those who challenge the reality of one or more crimes against humanity.

    Concerning racist messages, Article 24 requires a material element i.e. a link between incitement and the crime itself, which consists of discrimination, hate or violence. But Article 24 also enables to punish incitement regardless the concrete consequences when it can be qualified of "direct incitement", which does no more require demonstrating a thin link between incitement and the crime180. But it should be noted that incitement has to be direct, not only in its soul but also according to its words181. The article 24 also require an intentional element, which comes from the guilt's will to create the state of mind likely to provoke the crime182. Thus, certain messages diffused on the Internet are directly reprehensible, it matters little that they imply concrete actions.

    With reference to contesting war crimes, all revisionist messages spread through neo-Nazi sites or in an electronic forum, are likely to be opposed by Article 24 bis. The Appeals Court of Paris decided that every written word published in a revisionist review, which aims to deny the Jewish genocide, is a statutory offense183. Such an analogy between situations raised by certain web sites, or electronic forums, and a case that dealt with printed press, seem inopportune. But Article 24 and 24 bis criminalize the simple fact of expressing litigious speech, provided that culpable intention exists, regardless of the process in use184.

    An Islamic group in San Diego, posted instructions on the Internet for assembling inexpensive bombs such as those that exploded in the Paris subway185. French officials had quietly asked the US to crack down on this group. But what was the American reaction ?

    Since the beginning of the 20th century, the American Supreme Court Doctrine deemed that dangerous dissident speech was generally protected against government regulation except when the speaker would "counsel or advise a man" to commit an unlawful act186. The Supreme Court concluded that government could punish all speech likely to produce illegality, whereas the dissident doctrine suggested that government could punish speakers who had the explicit intention of encouraging crime, what was similar to the soul of Article 24 of the French Act of 1881. Until 1969, the Supreme Court made a balance between speech that contributed to democratic deliberation, which was protected, and speech that encouraged illegality. Finally, the Court's decision in Brandenburg v. Ohio (1969), which dealt with speech uttered by a member of the Ku Klux Klan, provided three criteria to determine whether government is able to regulate violent speech : the speaker must incite "imminent" lawless action, which is "likely" to occur, and must intend to produce such an action187.

    If terrorist material does not meet the three criteria of the Brandenburg test, the authors of such messages cannot be suppressed. Even if they have the potential to cause harm, most dangerous reference material is protected by the Constitution. Judges only allow the ban on the diffusion of details that have the potential to cause global destruction, for instance, the Progressive case188 which holds that the publication of details on how to make a hydrogen bomb violated the Atomic Energy Act189. It based its decision on the immense destructive potential of diffusing details on nuclear weaponry in other countries being at stake.

    In conclusion, American authorities did not accede to the French demand to prosecute the Islamic group. If this situation is not repressed in the USA, it does not mean that it is ignored by the substantive law. It only benefits of the preferential treatment provided by the First Amendment and the Supreme Court Doctrine190. But it is not so concerning immoral speech.

    Jean Baudrillard assimilates the world wide diffusion of techniques and information to pornography191. The Mellon study of Pornography in Cyberspace192 confirms his point of view. It points out the fact that digitized pornographic images accompanied with text, which treat themes such as bestiality and pedophilia, are widely circulated in all areas of the USA through the Internet and thus are accessible to users of other nations. After a year of exploring the Internet, Usenet, WorldWideWeb, and BBS, the research team discovered that one of the largest recreational applications of users of computer networks was the distribution and consumption of explicit sexual imagery and texts. Today, the broadcasting and publishing of such material is often prohibited in many nations.

    The French Penal Code primarily aims to protect the physical and psychological well-being of minors by prohibiting the production and the distribution of pornographic and violent material in certain circumstances. First, its Article 227-23 protects minors from the immoral exploitation of their bodies by punishing the production, for distribution, the transmission, and the diffusion of an image of a child when this image is pornographic. Secondly, the Penal Code protects minors from messages that may shock their sensibilities or incite them to the debauchery. Article 227-24 provides that the production, transmission, and diffusion of violent or pornographic messages, when a minor is likely to view such a message, is punishable by three years imprisonment and a fine of 500,000 francs. The infringement is constituted even if the minor has not seen the material, it is only necessary that he "is likely to view" the message. The Jolibois Amendment, inserted in Articles 227-23 and 227-24, was passed mainly to fight abuses that occurred on the French Minitel services193. Therefore, the amendment specifically provides that the diffusion of such material is punishable regardless of the device or the medium being in use. This provision includes once more the Internet.

    The American law provided the same protection as Articles 227-23 and 227-24. New York v. Ferber (1982)194 held that states can prohibit the depiction of minors engaged in sexual conduct, in order to impede the financial exploitation of child pornography. About the distribution and the diffusion of such material, the Section 2252 of the Title 18 of the US Code expressly forbids knowing foreign or interstate transportation or reception by any means including, among others, virtual depiction of minors engaged in sexually explicit conduct which have been converted into computer readable form, that includes scanning and digitizing, what is the ordinary process used to spread images through the Internet195. But children also have to be protected against any pornographic pictures that may be shocking for them. We noticed that according to the Supreme Court doctrine, obscenity is not protected under the first amendment, what enables each states to make laws severely restricting its availability, especially to minors. It should be emphasized that the CDA mainly tried to materialize in an Act, at the federal level, the existing jurisprudence and Acts about the diffusion of obscene or indecent material, and to adapt it to the new multimedia environment.

    Some messages spread from Dutch sites are another example of abuses that occur on the Internet. Until now, you can find about thirty sites that vaunt kindness of marijuana196. But such messages are illegal in certain European nations such as France where incitement to consumption of drugs is punishable. In fact, the French Penal Code represses in its Articles 227-18 and next, the incitement to begging, to consumption of alcohol and to illicit consumption of drugs, mainly with intent to protect minors.

    But the incitement is more generally punishable under the article 630 of the French Public Health Code (Code de Santé Public - C.S.P.), which stipulates that bringing help to consumption and inciting to consume drugs are also punishable even if no concrete results follow the incitements. Much more sever than Article 24 of the law of 1881, Article 630 C.S.P. represses straight the simple fact to incite. Therefore, any commercial advertisement and promotion by any means, which aims to enhance the value of illicit substances is prohibited197. It should be noted that the French Act of 16 July 1970 also prohibits the fact to present drugs under a favorable light, which is far more restrictive. However, according to some authors, this text seems to be unconstitutional since it impedes the expression of any ideas likely to contest the established rules on drugs198. Anyway, media often violate this law and benefit the indulgence of the French Cassation Court199, which allows the debate about drugs, provided it does not intent to induce the public to their consumption.

Section II - Enforcing the law behind the virtual world

    Many people are connected on the net everywhere in the world and can spread illicit messages in the numerous discussion forum or from a web site. It is very difficult to pursue users for two main reasons. In the first place, we noticed that the European law and American law are not always in total accordance. The Internet transcends national boundaries and the International Private Law is not yet sufficiently developed in certain fields of law to determine which tribunal is competent and which national law could be implemented to repress authors of illicit messages. Therefore, public prosecutor's office usually choose to prosecute national access providers. This is the case concerning UEJF that implicated the liability of nine access providers established in France200. The second difficulty is linked to the fact that the medium enables certain users to spread messages in total anonymity. For instance, in the case of defamation, you can use any virtual address you know to be registered in a BBS, or in a Newsgroup, and post a libel message. It would be impossible to determine from where you posted that message, unless you work on an authorities registered computer. But you could have worked on a computer in a university, or in a cyber coffee, which is used by a hundred of people in a week. Hence, even if technical devices employed by the police enable authorities to have a chance of locating the author of an illicit message, it is far easier to prosecute access providers, that are geographically and physically located, rather than numerous anonymous individuals.

    Authorities have met less difficulties to prosecute BBS owners as Robert-Alan and Carleen Thomas who have been located and condemned for their illicit activities of providing obscene material to adult and minors in violation of United States Code201. But, despite of their arrest, the problem remains unsolved since friends of them decided to run again the AACBBS. Yet, they often change phone-modem addresses and move the BBS physical location to escape authorities. In the case the access to such BBS is available through the Internet, it would be easier for authorities to prosecute access providers.

    Among the probable liable actors, some authors are questioning the possible implication of the common carrier202. But telephone companies are not supposed to monitor the content of messages travelling along their path. In France, France Télécom cannot be held liable for the material spread through its networks since it is only a carrier. According to the Direction Générale des Télécommunications (DGT), the Télétel networks203 are putted to providers disposal "under their entire liability concerning the content"204, what exempt France Télécom from liability. This was confirmed in a recent decision205 which deemed that the France Télécom representative should not be implicated for the penal infractions committed by service providers since he was not aware of what occurred through his networks before and during the realization of the infractions. Therefore, his criminal intention was not established. But, the a contrario interpretation of such a decision let us think that the representative could have been implicated if he was aware. In this way, French jurisprudence could join the American one that does not hesitate to held liable a common carrier when he "knows or have a reason to know" the illicit nature or material he carries206. Moreover, the new Fillon Act on the Experimentation in the Information Highways Fields put in force since April 10, 1996, could confirm the tendency to implicate common carriers207. This Act states that those who are entitled to a license for the exploitation of telecommunication infrastructure have to make sure that service providers "respect the rules ensuring the respect for the person, the protection for the youth and consumers". But until now, nothing can be asserted and access providers remain the most likely candidates to be considered as liable.

    So as to implement the penal liability, the culpable intention of the crime author generally has to be established. But access providers do not fulfil this intentional element when they are not aware of what goes through their services. We will see that most of the legal status that exist in the communication media fields takes into account the intentional element to establish a liability system. Since Internet access providers have no specific legal status, the courts and the doctrine208 had to reason by analogy, i.e. to be inspired by the legal model of other media. Though, according to the adopted models, the degrees of liability are not the same.

    Some people tend to consider the Internet as a library or a bookstore209, i.e. a site where any kind of publication is available. This analogy implies that access providers have the status of a re-publisher or disseminator defined as "someone who circulates, sells, or otherwise deals in the physical embodiment of the published material"210. According to the current policies in the USA, booksellers or libraries are not expected to read every book they sell or make available, and so, are presumed not to be aware of the illicit nature of certain publications content211. This was confirmed in Smith v. California (1959)212, that declares unconstitutional a law which held a bookseller strictly liable for the contents of the books he or she sells. Nevertheless, the courts defined a "know or have reason to know" minimum standards of liability213.

    The library analogy was adopted in Cubby, Inc. V. Compuserve (1991)214 because "Compuserve has no more control over such publication than does a public library, bookstore, or news-stand, and it would be no more feasible for Compuserve to examine every publication it carries for potentially defamatory statements than it would be for any other distributor to do so". Thus Compuserve was considered as a distributor of published material. Under this status the liability of access providers will be occurred each time they will know or have a reason to know that illicit messages are reachable through their services. Same thing happens whether access providers are considered as common carriers. Since librarians are not directly hold liable, the evidence of the access provider knowledge should be established by the public prosecutor's office, or his equivalent. This is the minimum standard of liability. But more recent cases provide a higher level of liability for access providers.

   In Prodigy215, judges held that Prodigy has to take on a higher degree of liability than Compuserve, and condemned it for defamatory messages posted in its bulletin board. To determine whether an access provider can be considered a publisher, the Supreme Court of the USA established a "reason to know" standard which was put in use in Prodigy : the court based its decision on the fact that Prodigy exercised sufficient editorial control over its computer bulletin board to know the content of material reachable through its services. This analogy directly holds liable access providers which behave as editors. That means the public prosecutor's office does not have to prove the access provider was aware, he merely deduced it from the editorial status. Under the USA legal system, the editor is the first person held liable for any messages spread through its publication; he has the total responsibility for the information he makes available.

    French jurisprudence is likely to put certain access providers into the category of press editors. The French Act on Audio-visual Freedom (Loi sur la Liberté Audiovisuelle) of 1986 transposed the printed press liability system into audio-visual communication216 fields. The Minitel, when it is used to send and receive public messages, is considered as an audio-visual device217. Therefore service providers must take on the editorial liability, which has been recently confirmed by the Cassation Court in 1992 regarding the diffusion of pornographic messages218. Thus, if jurisprudence identifies in the future the Internet to audio-visual means such as the Minitel219, the Internet access providers will have to bear the liability system applicable to the Minitel service providers.

    However, this standard has been applied in Compuserve, whereas Compuserve own services were implicated. The court justified its decision through the fact that Compuserve decided to not control his services, because of their important number220. Then, he delegated his regulatory power to the services directors themselves. Therefore, the court considered Compuserve a library, what a fortiori suggests that mere access providers should not be considered as editors. But it is not sure the courts will not consider other mere access providers using filtering software, as libraries. If they states that the simple fact to monitor what occurs on the network, implies that access providers implicitly choose the editor status, a pervert effect could occur : not a single access provider will adopt self-regulation devices anymore, so as to be considered a blind eyes common carrier or library.

    However, because of the CDA’s vagueness and the fact that no technology still exists able to surely determine the identity and the age of every user, the Chief Judge Sloviter deems the access providers will be likely to reduce the level of material to that appropriate for children, instead of risking a prosecution222. This is one of the major reasons why the CDA was judged unconstitutional, in particular under the holding in Sable Communication223, by the Philadelphia Court. Following this decision, the government appealed on July 26, 1996, that means the battle will continue in the US Supreme Court.

    On June 4, 1996, the French Minister of Post and Telecommunications brought in a new amendment that inserts Articles 43-1, 43-2 and 43-3 in the Law of September 30, 1986 on Freedom of Communication, which states an a priori exemption of penal liability for access providers, provided they fulfil two conditions (Art. 43-3). At first, they have to provide to their subscribers a filtering software, which implies a kind of "obligation of means"224 (Art. 43-1). Secondly, they must block the access to services which would not be founded not in accordance with the Act of 1986 by the new Superior Committee of Telematic (C.S.T.)225 (Art. 43-2).

    Although this amendment seems to regulate the Internet as other media, such as the Minitel or the Television, by widening the C.S.T. and C.S.A. competencies, it gives a new particular status to access providers : whereas the CDA and the printed-press editor status state a liability principle for access providers, the new Amendment 200 states the opposite principle. Therefore, access providers do not have to bring their "good faith" evidence, it is under prosecutors responsibility to determine access providers have not fulfilled the Articles 43-2 and 43-3 conditions. However, the end of Article 43-3226 could be interpreted as directly holding liable access providers that knowingly and personally committed or participated to the infraction. We think this formulation implicitly means that the fourth category of access providers will still be liable under the editorial and Minitel service providers status, because of their implication in the creation and the diffusion of material their provide.

    Thus, the French amendment decreases the risk of a penal prosecution for the three first categories of access providers. However, according to the U.E.J.F. barrister, Mme Lilti, since the exceptions to the liability are so wide, the bill will change nothing and access providers should always be aware of the material that are diffusing through their connection services227. This is also the A.U.I. (Association des Utilisateurs d'Internet) opinion according to which the new Article 43-3 states a "result obligation" for access providers to respect the C.S.T. recommendations, without taking into account whether or not they are technically applicable. In fact, we saw that the filtering devices are still not very efficient, and so, access providers will not be always likely to efficiently block access to illicit services228. As a consequence, the use of filtering software could not grant access providers to be free from liability in the sight of the new amendment.

    On June 24, 1996, a socialist group of Senators brought the Fillon Amendment before the Constitutional Court. On July 24, 1996, the Court estimated that the C.S.T. had been granted too high a power of decision about Freedom of Expression, which should be devolved to the sole legislator229.

    In the absence of such a treaty to regulate the Internet at the international level230, it is essential to seek after a better solution than the implementation of national criminal laws.

    It exists a civil legal link between the user and his access provider : the subscription contract. The contractual system enables the parties to elaborate together the clauses which will govern their relations. Of course, the professional often propose some standard contracts, but he can propose a wide potential of choices to his partner. In this manner, civil law has favored the "autonomy of will" principle, stating that both parties are able to determine the norms to which they consent to be submitted231.

    Thus, an user can ask his service provider to not provide him with pornographic or revisionist material, mainly to protect his children sensitivity. He can also ask to have filtering software leaving him access to litigious sites and impede it to his children232.

    On the access provider’s side, the professional will be able to discharge himself from the liability for unwilling messages he does not directly provide, i.e. he will recognize his liability only for the material he his likely to control. Concerning other material, some clauses could provide an "obligation of means" that oblige the access provider to use all possible means to block access to unwanted material. If the user receives such material, the access provider will be held civilly liable only if it is proved that he has not used filtering software. Thus, operators can choose the degree of liability and the status they wish to assume233. The contract could also provide for a better system of liability by making users aware of their responsibilities234. Users could be held liable for defamatory or pornographic messages they sent through the connection services proposed by their access provider. But this contractual liability will only be implemented when an illicit message is reachable by another person contractually linked to the same access provider. If it is not the case, it will be possible to engage the civil liability of the author on the basis of Article 1382 of the Napoleon Code235. Operators can also make services directors he lodges, responsible for the litigious material they provide or create, since it also exists a contractual link between services directors and access providers. However, the professional cannot completely discharge himself from certain obligations since some restrictive clauses are forbidden in many countries236, e.g. clauses that exempt the access provider from infractions to public order disposals, such as those protecting the consumer237.

Conclusion

    All along this study, we noticed that the Internet has concrete implications, which are already ruled by law. But even if there is no gap in the law facing the situation raised by the Internet, our public communication regulation is not really applicable to every actors, because of the nature of the new technology environment. This situation transcends our usual reasoning frameworks accustomed to apprehend traditional communication devices governed by a central point of decision, e.g. the broadcasting director of a T.V. channel, the publisher editor, the Minitel services director of publication, all known by authorities. With the Internet, every user can diffuse what he wants, without referring to official compulsory deontological code or undergoing any interference from state authorities. Only access providers are known and able to filter messages diffused thanks to their own services, or to prohibit certain sites creation. But their control capacity is limited to the services their decided to lodge, when they have not been obliged to delegate their supervision power. Moreover, we showed that individuals, as information receivers, are more capable to keep control on material they want to reach in an interactive environment.

    Is it possible to make an exception for the Internet ? This implies the authorities agreement and the elaboration of a particular exception system. That is why some authors speak about a new regulatory paradigm, which will increase individuals’ will and responsibilities through the contractual system. This could question the supreme state authority. Part of it will be take over from states to access providers, which will have to elaborate their own self regulation system238. Thus, individuals will be able to choose their access providers in function of the system they have adopted. The Leviathan State, which has all authority to control individuals liberties within its frontiers may progressively see its power challenged by the network entities in their new boundaries239. The body of such entities is composed of all individuals who contractually decide to "belong" to the global network. Nonetheless, individuals still belong to concrete world. It is essential that states keep a certain control on messages threatening national security or major public order dispositions, such as those which condemn terrorism acts and pedophile activities240. Since elements of the Internet as well as subscribers have physical location, authorities can require the help of local service providers able to give information about the actors of such activities.

    Eventually, until now, no bill has really taken into account the technical characteristics of the interactive global environment of the Internet. Although it will have to be supported by constitutional judges, the regulation degree will mainly depend on authorities political ideologies. They can either choose to give more liberties to individuals to the detriment of State authority, or to reinforce such an authority by reasserting the public order and common moral standards.

Footnotes

1 The conception of the first modern computer is attributed to Von Neumann. See Pierre Lévy (1987), La Machine Univers : Création, Cognition et Culture Informatique, Paris, La Découverte, 1992, p. 77.

2 e.g. some authors talk about a new paradigm in the scientific community for the following reasons : the frequent use of metaphors relating to computer and cybernetics in scientific communications and the new rationality coming from computers standards. See Pierre Lévy, op. cit. : "L'emploi croissant de concepts informatiques et cybernétiques dans diverses disciplines, l'usage de plus en plus fréquent de simulations numériques pour étudier les phénomènes, ou la tendance à la mise en algorithme des raisonnements scientifiques sont différentes manifestations de l'émergence d'un paradigme du calcul.", p. 131. See also p. 11.

3 See Pierre Lévy, op. cit. : "La mutation anthropologique [consécutive à l'informatisation de la société] enveloppe le terreau de civilisation qui porte l'informatisation autant que les effets de celle-ci sur les habitudes mentales et le rapport au monde", p. 43.

4 Because personal information such as address and race can easily be stored as data and forwarded or exchanged without little much difficulty. See Joëlle Bonin, Mémoire de Maitrise en Art, Communication et Langage, L'Impact des Nouvelles Technologies de Communication sur les Libertés Individuelles, Nice, Juin 1995, p.51. See also Philippe Breton (1987), Une Histoire de l'Informatique, La Découverte, Point Seuil, 1990 : "(...) les menaces sur les libertés individuelles semblaient en passe de devenir simplement un mauvais souvenir. La plupart des sociétés démocratiques avaient saisi l'occasion pour mettre au point un arsenal juridique qui protégeait encore mieux le citoyen qu'avant les ordinateurs", p. 233. To illustrate this last proposition see the French Act 78-17 of 6 January 1978 on Data Processing, Data Files and Individual Liberties, Section 1 : "Data processing shall be at the service of every citizen. It shall develop in the context of international co-operation. It shall infringe neither human identity, nor the rights of man, nor privacy, nor individual or public liberties".

5 To date, the legislation of many countries, such as Australia, Canada, France, Germany, Japan, the United Kingdom and the United States, has expressly recognised the applicability of copyright protection to computer programs. See Association littéraire et artistique internationale, L'Informatique et le Droit d'Auteur, Congrès 1989, Canadian Literacy and Artistic Association Inc., Editions Yvon Blais, 1989, p. 60.

6 "Information superhighways" is a concept put forward by Mr. AL Gore, Vice-President of the United State, which idea consist in the development of a data and information network at national and international level. According to Nicholas Negroponte, the new technology environment brings us into a post-information age that mostly respect individuals : "In the post-information age (...), everything is made to order, and information is extremely personalised (...). In being digital I am me, not a statistical subset.", Nicholas Negroponte (1995), Being Digital, London, Hodder and Stoughton, 1995, p. 164. Nicholas Negroponte is the head of the Massachusetts Institute of Technology Media Lab and the creator of the Wired review. He is known for his ultraliberal ideas. See Mark Ward, Quand les Gourous s’égarent, Planète Internet, n°10, July-August 1996, p. 39 and 42.

7 Because, according to Joel R. Reidenberg, "the global network environment defies traditional regulatory theories and policy-making practices.", Joel R. Reidenberg, Working paper : Governing networks - Regulatory Theory, Policy and Practice for Leadership on the GII to be published in 45 Emory Law Journal, 1996, p. 1. This point of view will be developed in Chapter one.

8 The French Union of Jews Students issued a writ, on 15 March 1996, against nine French access providers on the grounds that these access providers allow their clients to access services with negationist messages infringing French criminal law. See La Lettre de L'Internet Juridique, <http://argia.fr/lij>.

9 Two access providers were charged, on 7 May 1996, for having made pornographic images of children available to their subscribers on their server. See La Lettre de L'Internet Juridique.

10 See note 6. The Bangemann Report took up the issue of information superhighways in Europe, and was followed by different national reports, such as the Denmark "Info-Society 2000" report or the French "Théry Report". See C. Lamouline and Y. Poullet, From Information Superhighways to Electronic Democracy, Steering Committee on the Mass Media, Report presented to the Council of Europe, 30 October 1995, p. 32.

11 A protocol is a formal description of messages formats and the rules two or more machines must follow to exchange those messages.

12 See Jean-Claude Guédon (1996), La Planète Cyber : Internet et Cyberespace, Paris, Découvertes Gallimard Techniques, 1996.

13 See Douglas E. Comer, Inter-networking with TCP/IP, Prentice-Hall International, Inc.

14 Defence Advanced Research Project Agency.

15 See M. Hauben, Netizens : On the History and Impact of Usenet and the Internet, available on the Internet in June 1996, <http://www.cs.columbia.edu/~hauben/netbook>.

16 See Yves Eudes, Odyssée des Pirates dans la Jungle Internet, Médias et Contrôle des Esprits, Manière de voir - Le Monde Diplomatique, 1995, p. 59. See also M. Ejan Mackaay : "L'Internet est, à l'heure actuelle, imbu d'une mission de partage : un environnement visant l'exploitation d'une propriété commune.", Colloque "Les Autoroutes de l'Information : Enjeux et Défis", Centre Jacques Cartier Web Site, 5-8 December 1995,available on the Internet on Feb. 1996, <http://iep.univ-lyon2fr/J.Cartier/mackaay.htlm>.

17 See Philip Elmer-Dewitt, Battle for the Soul of Internet, Time, July 25, 1994, p.37.

18 See Philippe Breton (1992), L'Utopie de la Communication, Paris, La Découverte, 1992.

19 Such as Isaac Azimov, who wrote severals books about the scientific popularization.

20 See Libertarian Party, History, Libertarian Party Web Site, available on the Internet in June 1996 : <http://www.lp.org/lp/lp-hist-overview.html>. Libertarian Party, was founded in 1971 and became the third largest political party in the United States. It is mainly inspired by the anarchism and radical-individualism movements.

21 Yves Eudes, Internet : Alerte aux Neonazis, Le Monde, supplément multimédia, 12 Febuary 1996, p. 26-27. Also available on the Internet in March 1996, <http://www.lemonde.fr/multimedia/archives/>.

22 e.g. see the introduction discourses of The Nation Information Infrastructure : agenda for action in Los Angeles, 11 January 1996. According to this myth, every individuals in the world wide could correspond with any body elsewhere as if they were in a village. This ideological term has to be distinguished from the technical one of "global network". See Chapter I - Section I - § 2.1.

23 The number of users started from 6.000 in 1983, to one million in 1990, ten million in 1993, and increases of more than ten million a year. See Henri Jousselin, Internet : Passé, Présent, Futur,CD Rama, n°9, September 1995, p.64-68.

24 Such as Compuserve, American On Line, Infonie, Imaginet...

25 See Annie Kahn, Internet, la Guerre des Fournisseurs, Le Monde, supplément multimédia, 22 April 1996, available on the Internet on June 1996, <http://www.lemonde.fr/mutimedia/sem1796/textes/enq17961.html>.

26 See Péo Chanez, Tour de France des Cafés Branchés, Planète Internet, n°10, July-August, p. 22 to 25.

27 Electronic mail or "e-mail" allows a user to compose electronic messages on his computer and send them to individuals or groups, which are connected to the same computer network. E-mail also allows a user to send or receive large files of programs or data, thanks to the FTP (File Transfer Protocol) function. See David Loundy, E-Law, Computer/Law Journal, vol. XII n° 2, December 1993, p. 164 to 173 and Douglas E. Comer, op. cit.

28 Bulletin Board System, or "BBS" is a program which runs on a computer and allow people to call the BBS from their own computers. The most important service a BBS may offer to its subscribers is to provide a message area which allows a person calling up to leave messages regarding a specific topic and read other messages left by other users on that topic. The Internet enables its users to have an access to many of these BBSs. See David Loundy, op. cit.

29 The Internet Relay Chat allows a user to send messages instantaneously, or nearly so, to another user who is using the BBS at the same time. It also support multiple users simultaneously. See Yves Eude, Au Pays des "Avatars", Le Monde, supplément multimédia, 10 June 1996, p. 26 to 27.

30 Newsgroups are discussion groups, arranged into different categories according to the topics. These discussion groups developed on a network called "usenet" which is now linked to the Internet. See David Loundy, Op. Cit and J.C. Guénon, op. cit., p. 120 to 121.

31 The World Wide Web or "WWW" is an hypermedia system developed in the CERN. It allows a user to access every document or web sites that exist on the Internet by using hypertext links, i.e. links constituted between words that have a common signification, thanks to which users can choose their own path through some material. To visit a web site, a particular software, called "browser", is necessary. It enables to "navigate" through data of the different sites. Currently, Netscape is the most popular browser. It allows the use of the new research tools such as Netsearch, Yahoo, Lycos and Magellan, so as to find the expected document or services. See J.C. Guénon, op. cit. and Christian Huiteman (1995), Et Dieu créa l'Internet, Paris, Eyrolles, 1995, p.193 to 201. Christian Huiteman was the former chairman of the Internet Architecture Board (IAB).

32 Access providers propose a particular subscription to lodge web sites. Some magazines explain how to create your own web site, e.g. see Dossier SVM, Internet est à Vous !, Science Vie et Micro, n°134, Janvier 1996.

33 According to the Encyclopedia Britannica (1980), p.1005, I.A. Richards, an English literary critic and author, offered one of the best definitions of communication: "Communication takes places when on mind so acts upon its environment that another mind is influenced, and in that other mind an experience occurs which is like the experience in the first mind, and is caused in part by that experience". More simply, the Webster's third new International Dictionary define communication as "the act or action of imparting or transmitting"

34 Claude Shannon was a former student of Norber Wiener, a famous American scientist in cybernetics, and worked out on "The Mathematical Theory of Communication". For more information about these authors see Yves Winkin (1981), La Nouvelle Communication, Paris, Point Seuil, 1984, p 15-26.

35 See Encyclopedia Britannica, p. 1005.

36 According to Shannon’s theory, the information is an abstract statistical magnitude that qualifies the message independently of its meaning. We would prefer the vision of the Bateson School, whose definition of messages and information takes into account their meaning in its context, see Yves Winkin, op. cit. From this theory, texts, images, sounds and movements indifferently generate information, and so establish a communication. All of this can be sent through the Internet, thanks to the new multimedia tools. This term "multimedia" is used at the same time to refer to computers, programs, high-capacity networks and their interactive services. Precisely, "multimedia" means the combination of fixed or moving images, sound and data in a digital form.

37The term regulation includes two meanings : the fact to establish some rules of law, and that of controlling a phenomenon with the help of these laws. The former meaning calls for a future regulatory action, whereas the latter refers to the establishing rules, which will be implemented by judges. This study mainly deal with the second meaning, through which we will analyze the opportunity of a probable future regulation.

38 This idea was put forward by John Perry Barlow, one of the foundators of the Electronic Frontier Foundation organisation, in the Cyberspace Declaration of Independance. Quoting his Declaration taken from a French magazine : "Gouvernements du monde industrialisé, géants fatigués faits de chair et d’acier, j’arrive du Cyberespace, la nouvelle habitation de l’esprit (...). Vous n’êtes pas les bienvenus parmi nous. Vous n’êtes pas souverains là où nous nous rassemblons (...). Vos concepts juridiques de propriété, d’expression, d’identité, de mouvement et de contexte ne s’appliquent pas à nous. Ils sont basés sur la matière. Il n’y a pas de matière ici". See Philippe Rochet, Un Monde sans Etat ?, Univers Interactif, n°11, July 1996, p. 47.

39 In recent chat rooms, a user can choose graphical characters that are able to move in a virtual lounge, so that he could meet other persons. See Yves Eudes, Au Pays des "Avatars", Le Monde, supplément multimédia, 10 Juin 1996, p. 26 to 27.

40 Negroponte enumerates the specificity and advantages of e-mail : "e-mail is more conversational medium. While it is not spoken dialogue, it is much closer to speaking than writing" (p.190). E-mail is an asynchronous medium which does not constantly interrupt you as the telephone do. Besides, those messages are in a computer readable form and can easily be copied in a computer file. See also Christian Huiteman, op. cit., p. 18.

41 " L'habitude du e-mail chasse celle du téléphone " Christian Huiteman, op. cit., p.20

42 "E-mail is a life-style that impacts the way we work and think. One very specific result is that the rhythm of work and play changes" Negroponte, op. cit., p. 193.

43 The definition of culture in the American Heritage Dictionary (1992) is : "1.a. The totality of socially transmitted behaviour patterns, arts, beliefs, institutions, and all other products of human work and thought. b. These patterns, traits, and products considered as the expression of a particular period, class, community, or population. c. These patterns, traits, and products considered with respect to a particular category, such as a field, subject, or mode of expression.".

44 According to Nicholas Negroponte the Internet is "creating a totally new, global social fabric", op. cit., p. 183.

45 Such as the term "newbie" used to describe unsophisticated users of the Internet, or the famous "smiley" .

46 See Howard Rheingold (1993), The Virtual Community : Homesteading on the Electronic Frontier, London, Secker and Warburg, 1993. Also available on the Internet in May 1996 : <http://www.well.com/user/hlr/vcbook/>.

47 "Netiquette" refers to the often but communally enforced rules governing appropriate behaviour in the virtual world of the Internet (the Internet Society has written its own Guidelines e.g. see Vint Cerf, Guidelines for conduct on an use of Internet, Internet Society, August 1994. The Netiquette is also available on the Internet on many sites, e.g. <http://www.fau.edu/rinaldi/net/index.htm>), "flaming" is responding in a hostile or highly critical way to a user who has been perceived as violating these norms of the Netiquette.

48 Bourdieu defines the habitus as the "system of acquired dispositions functioning on the practical level as categories of perception and assessment or as classificatory principles as well as being the organising principles for action", Pierre Bourdieu (1987), In Other Words : Essays Towards a Reflexive Sociology, Stranford, Stranford University Press, 1990. According to Elizabeth Lane Lawley, "Bourdieu sees the habitus as the individually operationalized but collectively effective method for the regulation of behaviour within field", Elizabeth Lane Lawley, The Sociology of Culture in Computer-Mediated Communication, Technology Assesment Web Site, available on the Internet in March 1996, <http://www.itcs.com/elawley/bourdieu.htlm>, p. 7. This author tends to prove, with the help of Bourdieu's model of society, that computer-mediated communication such as the Internet is a culture by its own.

49 "(...) le stockage, la transmission et le traitement automatique des informations numériques interposent une médiation entre les sujets humains et leur technocosme. [...] L'accès direct aux choses s'éloigne d'un cran supplémentaire.", Pierre Lévy, op. cit., p.12.

50 Another definition from the Webster's third new International Dictionary is : "of, relating to, or possessing a power of acting without the agency of matter". In fact, what it is called virtuallity or reality appeal to a psychological feeling and should be defined in particular social context : is virtual what does not induce a reality in our culture.

51 This virtual address just permits to locate a person in the virtual world, not in the actual one, whereas a telephone number is attributed to a physical place as your traditional address.

52 Negroponte, op. cit., p.166.

53 An "account" basically amounts to a name recognized by the computer, a password which allows access to the computer, and a set of "account privileges", which determine what the user can do with the account e.g. e-mail or access to a network which allows the user to tap into remote computers' resources.

54 This term is attributed to the science fiction author William Gibson.

55 A famous cartoon of two dogs using the Internet, often cited by the authors, illustrates this anonymity : one dog types to the other: "On the net, nobody knows you're a dog." And Nicholas Negroponte adds: "It should be appended with: "And they don't know where you are." ", op. cit., p. 194.

56 Joel R. Reidenberg notices that "Internet listservs connecting interested individuals around the world, on-line chat rooms providing live, but remote contact, and cybersex offering intimate, though electronic, relationships all demonstrate a diminishing value for physical proximity". Philippe Breton notice the same fact: "On évoque même l'émergence de nouveaux modes de relations entre les hommes, y compris de relation sexuelles, qui feraient appel aux ressources des technologies dites virtuelles", Philippe Breton, Les Autoroutes de l'Information : le futur des années cinquante ? Journal de Réflexion sur l'Informatique, Namur, n°34, Feb. 1996 p.16. See also Philippe Breton (1992), L'Utopie de la Communication, and to illustrate this proposition : Isaac Asimov (1957), The Naked Sun, New York, SFBC.

57 The query of status of the Internet will be discussed in the Chapter II.

58 This feeling is well illustrated by Sherry Turkle, Interview of the "cyberpsychiatry", in MIT, Technology Review, Feb. - Mar. 1996, also in Jean-Claude Guédon, op. cit., p.106-107.

59 Ernst Zündel, a German neo-nazi living in Toronto, make available neo-Nazi propaganda on his own sites. He and some revisionist militant, set up on American on-line services three important sites and diffuse messages that minimised the range of the Shoah. See Yves Eudes, Internet : Alerte aux Néonazis, Le Monde, supplément multimédia, 12 Feb. 1996. Important sites also exist in Europe such as those of the National-socialist Movement of Denmark. See Robert Derumes, La Haine en Europe aussi, Le Ligueur, 7 Feb. 1996, also available on the Internet in March 1996, <http://www.cyclonet.be/altho/ligueur.htlm>.

60 For relevant exemples see Jean Guisnel, Big Brother a les Moyens d'Exister, Libération, 19 January 1996, available on the Internet in May 1996 : <http://www.liberation.fr/arc_mult/4561m007.htlm>.

61 See The Information and Privacy Commissioner of Ontario, Privacy Protection Principles for Electronic Mail Systems, The Computer Law and Security Report, Mar - Apr 1995, p. 68.

62 In this way, a German engineer, his wife and a third man were arrested in April 1996 for illegal electronic material dealing. This is the first example of e-mail interception authorized by American judges, see Luc Lamprière, Courrier Electronique sur Ecoutes, Libération, 9 April 1996, available on the Internet in May 1996 : <http://www.liberation.fr/arc_mult/4549m012.htlm> ; to go further on criminal investigation in these fields see Dr Irini E. Vassilaki, Interception Of Telecommunications for Criminal Investigation : a Comparative Analysis, The Computer Law Security Report, Sep- Oct 1994.

63 It has to be noticed that access providers can help authorities to find your real identity. By the way, it is impossible to know whether the virtual address was used by its subscriber himself (this subject will be discussed in Chapter II). Moreover, users can encrypt their messages, though it is not always legal.

64 This is the opinion of François Fillon, French Minister of Postal Affairs, Telecommunications and Space : "In fact, while there can be no question of challenging the freedom of use of these new networks, we cannot allow a 'digital wild West' to develop in which our French laws would hold no way". Available on the Internet in May 1996 : <http://www.telecom.gouv.fr/english/comdis/i230296.htlm>.

65 Edgar Morin (1982), Science avec Conscience, Paris, Fayard, Point Seuil, 1990, p.168 : "[les organisations sociales et biologiques] sont complexes, parce qu'elle sont à la fois acentriques (c'est à dire fonctionnent de façon anarchique par interactions spontanées), polycentriques (qui ont plusieurs centres de contrôle ou d'organisation) et centriques (qui disposent en même temps d'un centre de décision)".

66 This is one of the big difference that distinguish the Internet and the French Minitel. France Télécom owns the latter and can control the different Minitel services from its decisional centre.

67 by connecting to another access provider, connecting to a remote computer (the remote login function allows a user sitting at one computer to connect to a remote machine and establish an interactive login session), or accessing to sites that propose links towards other sites, users can still and have access to litigious materials.

68 See Edgar Morin, op. cit., p. 168 : dans le système de complexité du principe hologrammatique : "on peut dire que non seulement la partie est dans le tout, mais que le tout est dans la partie".

69 See This Comment is Free for now, Guardian On-Line Internet, available on the Internet on 26 January 1996, <http://go2.guardian.co.uk/internet/960126wwexporno.htlm>. According to Jacques Frémond, director of the Centre de Recherche en Droit Public (C.R.D.P.) in Montréal, the Internet defies the states sovereignty. Personal Interview on 25 June 1996.

70 Elisabeth Auvillain, Barrage sur les Autoroutes Sexuelles de l'Information, Le Soir, January 1st, 1996.

71 Sometime after, Deutsche Telecom, Germany's national phone company, has blocked its one million customers from gaining access to Internet web sites maintained by customers of Web Communications of Santa Cruz. See Mercury News, German Internet Provider Blocks access to U.S. Web Server, available on the Internet on January 27, 1996, <http://www.sjmercury.com/news/world/germy127.htlm>. See also Enquête contre Internet, Le Soir, January 28, 1996. Nevertheless, if Compuserves was established in Germany, it wouldn't have blocked the access world wide. In fact, "National borders are being replaced by network borders", see Joel R. Reidenberg, op. cit., p. 4.

72 David Kline, The Myth of The Global Village, Market Forces, available on the Internet in April 1996, <http://www.hotwired.com/market/>. It should be noted that China is also attempting to control the flow of content over the Internet : on Feb. 1996, Chinese officials announced that electronic communication will by channeled through filters monitored by the Ministry of Posts. Moreover, all domestic Internet users must register with the police. The new rules ban the production, distribution or retrieval of pornographic or subversive materials. For more information see Andrew Higgins, China attempts to control Internet,Gardian On-Line Internet, <http://go2.guardian.co.uk/internet/960204wwtgchina.html>, available on 4 Feb. 1996. See also an article of Michael Meyer, Whose Internet ?, Newsweek, April 22 1996, p. 42 to 46, which resumes all national initiatives about the regulation of the Internet.

73 "The new paradigm must recognize all dimensions of network regulatory power", Joel R. Reidenberg, op. cit., p. 8.

74 The French Minitel is also look upon as an interactive media. See the French Act of 29 July, 1982 : an interactive service is "tout service de communication audiovisuelle avec le public par lequel chaque utilisateur interroge lui-même à distance un ensemble d'écrits, de sons, d'images ou de documents, messages individuels de toute nature à l'exclusion des oeuvres cinématographiques et ne reçoit en retour que les éléments demandés".

75 See the definition of Nathan Shedroff, Continuums of Interactivity, 1994, available on the Internet in May 1996 : <http://groundzero.vivid.com/high/UnifiedPaper/continter.htlm> : "The difference that defines interactivity, then can include the amount of control the audience has over the tools, pacing, or content, the amount of choice this control offers, and the ability to use the tool or content to be productive or to create". For more information about the concept of interactivity see Stephen Wilson, The Aesthetics and Practice of Designing Interactive Computer Events, available on the Internet in May 1996 : <http://userwww.sfsu.edu/~swilson/interactive2.htlm#what>.

76 Sysops are "Systems Operator", corporations which run a system, and particularly access providers.

77 See Aaron Taebi, 'Self Regulation' on the Internet, The Computer Law and Security Report, Jul-Aug 1995, p.202-203.

78 See note 47. For instance, the Netiquette contains commandments such as "Thou shalt not use a computer to harm other people; Thou shalt not appropriate other people's intellectual output; Thou shalt use a computer in ways that show consideration and respect". See the Ten Commandments for Computer Ethics, <http://www.fau.edu/rinaldi/net/ten.html>.

79 A group called Net Vigilentes was create to implement the Netiquette, their in-depth knowledge of the Internet allows them to deliver different kind of punishments. See Aaron Taebi, op. cit.

80 That was the case for the U.S. attorneys Canter & Siegel involving an advertising that violated the Internet Guidelines. See Christian Huiteman, op. cit., p.165-166.

81 Such as libel, fighting words, and hate speech.

82 Even the moderators can find themselves being moderated.

83 e.g. Surfwatch software detects and inhibits access to certain sites listed by the company operating the software. These programs, such as Netnanny, Cybersitter or Cyberpatrol can also be installed in the families' computer at home. Filtering software may also use a dictionary to detect certain words that would determined the shocking nature of the location. The program can ask the parent to configure a password, if the right password isn't entered, it can run in clean-only mode.

84 See Christian Lamouline and Yves Poullet, op. cit., p.38-39.

85 See Christian Huiteman, op. cit., p. 173 : " Selon l'éthique dominante dans l'Internet, le choix de consulter ou non [les services choquants] est une affaire individuelle, une question de morale personnelle dans laquelle les autorité du réseau n'ont aucune raison de s'immiscer". See also J. L. Gassée, Cybersexe et Culture Américaine, Libération, 16 Feb. 1996, available on the Internet in May 1996 : <http://www.liberation.fr/arc_mult/4585m006.htlm>.

86 Ed Krol (1992), The Whole Internet - User's Guide & Catalog, New York, O'Reilly & Associates, Inc., 1994, p. 41.

87 In the close scientific milieu, the Internet was mainly use to exchange professional information. Such a "corporation" was certainely more concerned about the good running of the network than every individuals using now the Net.

88 See the Introduction.

89 See Carlin Meyer, Reclaiming Sex From the Pornographers : Cybersexual Possibilities, Georgetown Law Journal, Vol 83. Software that filters addresses of unwanted sites also brings different problems e.g. they are likely to block other services that are not litigious. For more informtion see the analysis of the A.U.I. on the inconvenient and the ineffectiveness of the address and services filtering software, available on the Internet in July 1996, <http://www.aui.fr/Dossiers/Amend-fillon/analyse-amend.html >.

90 See Christian Lamouline et Yves Poullet, op. cit., p. 38 : to encourage these initiatives, the authors deem that, following the users’ wish, certain retrieval systems should only access sites which are labeled.

91 The issues about terrorist messages diffused thanks the Internet were debated on Tuesday 30 July 1996 during the last G7 top meeting. See Le Figaro, Wensday July 31, 1996, p.1; and Annie Kahn, Internet dans l’Oeil des Policiers du Monde entier, Le Monde, Thursday August 1st, 1996, p. 3.

92 The U.D.H.R. was adopted in December 1948. The text is available on the Internet e.g. <http://www.traveller.com/~hrweb/legal/cpr.html#Article 19.2>.

93 About fifty nations.

94 Because the U.D.H.R. is a resolution which contend is compulsory only for those states that concluded between them an agreement or a pact recognizing the principles of the Declaration. See Jacques Robert (1972), Liberté Publique et Droit de l'Homme, Paris, Montchrétien, 1988, p. 71-72.

95 The E.C.H.R. was signed in November 1950.

96 According to the E.C.H.R., "this right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers".

97 Thus, the article 55 of the French Constitution makes provision for that international agreements have a superior value as national laws.

98 For more information about the European Court of Human Rights, see Jacques Robert, op. cit., p.73.

99 Nevertheless, certain states do not take into account the court's injunctions, but these judgments have the advantages to call the international attention so that the member states could take the requisite measures.

100 The art 10 of the French Declaration stipulates that "No one shall be disquieted on account of his opinions, including his religious views (...)", and art 11 adds : "The free communication of ideas and opinions is one of the most precious of the rights of man. Every citizen may, accordingly, speak, write, and print with freedom (...)". Text available on the Internet : <gopher://ucsbuxa.ucsb.edu:3001/0ftp:nptn.org@pub/e.texts/freedom.shrine/french>.

101 "Congress shall make no law (...) abridging the Freedom of Speech, or the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances". See <http://pacific.discover.net/~dansyr/billrigh.htlm>. The first ten amendments, also called "the Bill of Rights", were ratified on December 15, 1791. See Françoise Burges (1974), Les Institutions Américaines, Paris, PUF, Que Sais-Je ?, 1974.

102 See Yves Madiot (1976), Droit de l'Homme et Libertés Publiques, Paris, Masson, 1976, p. 252.

103 Article 4 continues : "hence the exercise of the natural rights of each man has no limits except those which assure to the other members of the society the enjoyment of the same rights. These limits can only be determined by law". And the article 11 pointed out that "Every citizen (...) shall be responsible for such abuses of [the Freedom of Expression] as shall be defined by law".

104 The E.C.H.R. was notably adopted to make effective the U.D.H.R. principles.

105 France also adopted restrictions for T.V. and radio broadcasting. According to the French Act of August 7, 1974, national societies' boards of directors had to ensure the programs' quality and morality, the objectivity and exactness of information, and the expression of principals leanings and trends of thought. See Yves Madiot, op. cit., p. 260. Since an Act of January 17, 1989, these mission has been devoted to the Superior Council for the Audiovisual (C.S.A.), which also have to ensure the respect of the human dignity and the safeguard of the public order. See Emmanuel Derieux (1991), Manuel de Droit de la Communication, Paris, LGDJ, 1991. It should be noticed that the law provides a "right of reply". The Paye report deems that this right is a necessary compensation in the context of Freedom of Expression. This right can also be implicitly deduced from the article 10 provision of the E.C.H.R., which aim at protecting the "rights of other". See C. Lamouline and Y. Poullet, op. cit.

106 The cinema censorship is governed by the French Order of July 3, 1945.

107 e.g. see Conseil d’Etat, 18 December 1959, Société "Les Films Lutétia" et Syndicat Français des Producteurs et Exportateurs de Films, Rec. 693 in M. Long, P. Weil et G. Braibant (1956), Les Grands Arrêt de la Jurisprudence Administrative, Paris, Sirey, 1974 (6ème édition), p. 491-497. See also an other decision : C.E., 14 October 1960, Société "Les Films Marceau", Rec.533, in which the Council of State examines whether the immorality of the film is susceptible to legally justify its banning by taking into account the local circumstances. Usually, the French Council of State deals with conflicts which oppose individuals and the public administration, but it also have the responsibility to give an opinion for this administration.

108 i.e. there must be a bond of proportionality between the measures and its legitimate purpose, that also means the less restrictive measure should be adopted to accomplish the goal. See C. Lamouline et Y. Poullet, op. cit., p. 34.

109 These purposes are : national security, public safety, the prevention of disorder or crime, the protection of health and morals or the protection of the rights and freedoms of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and in partiality of the judiciary.

110 The current French system was not declared in opposition with the article 10 of the Convention. See Jacques Robert, op. cit., p. 75.

111 The article 1 asserts : "Printing and book shop are free".

112 See article 2 of the French Act of July 16, 1949. The morality question could implies difficulties regarding the proportionality principle of the E.C.H.R. But the European Court allows states a significant margin of evaluation. See C. Lamouline et Y. Poullet, op. cit., p.34.

113 See Chapter I - Section I - § 2.2.3.

114 The CDA amendment was introduced by Senators Exon and Coats. It aimed at applying to computer communications those laws which already exist in the area of mail and obscene, indecent or harassing telephone calls. The Senate rejected the Leahy proposition which requested the assessment of the effectiveness of criminal law provisions on obscenity and child pornography on the network, in a multimedia environment, and the ways of implementing such legislation. Unlike the Senate, the Chamber has opted for the Cox and Wyden amendment called the "Internet Freedom and Family Empowerment Act", which prevented the Federal Government from regulating the content of the Internet, commercial on-line services and other interactive media. See note 141.

115 See Jack Scofield, Beyond the Seven Dirty Words, Guardian On-Line Internet, 9 February 1996, <http://go2.guardian.co.uk/internet/960209wwextra.html>.

116 See J. L. Gassée, op. cit.

117 It also criminalizes the intentional transmission of : "any comment, request, suggestion, proposal, image, or other communication which is obscene, lewd, lascivious, filthy, or indecent, with intend to annoy, abuse, threaten or harass another person" or "any comment, request, suggestion, proposal, image, or other communication which is obscene or indecent, knowing the recipient of the communication is under 18 years of age, regardless of whether the maker of such communication... initiated the communication.". Violators of this section shall be fined under Title 18, U.S. Code (250.000$), or imprisoned no more than 2 years, or both.

118 See Marc L. Caden and Stephanie E. Lucas, Accidents On the Information Superhighway : On-Line Liability and Regulation, Richmond Journal of Law and Technology, February 13, 1996, p. 7 to 9, available on the Internet on March 1996 : <http://www.urich.edu/~jolt/archives/v2i1/caden_lucas.txt>.

119 The Act also created a division between regulated broadcast media and common carriers.

120 Since 1976, the F.C.C. has decided that the data processing industry came under its authority.

121 According to the F.C.C. these services must restrict access by requiring a credit card payment, the use of an access code, or message scrambling. If providers respect this measures, a presumption arises that the user is an adult.

122 See Cass R. Sunstein, In Cyberspace, Constitutional Lawyers Should Be Quiet, p. 2-3, available on the Internet in May 1996 : <http://law.lib.uchicago.edu/forum/sunstein.txt>.

123 Neither the pornography. See New-York v. Ferber (1982), which held that states can prohibit the depiction of minors engaged in sexual conduct, 458 U.S. 747 (1982).

124 a case that explored the constitutionality of a state statue prohibiting the mailing of unsolicited sexually explicit material, 413 U.S. 15 (1973).

125 1. the work has to be resented as appealing to the prurient interest by the average person applying community standards, 2. it must depicts or describes in a patently offensive way, sexual conduct specifically defined by the applicable state law, 3. It must lack serious literary, artistic, political or scientific value. Thus, jury will have to apply the standards of the community to which the indecent material was provided.

126 Y. Poullet and C. Lamouline deems that "this approach is similar to that followed by European Court of Human Rights, which relies within certain limits on the margin of appreciation left to states as regards morals", op. cit., p. 40. See note 112.

127 438 U.S. at 726 (1978) and 492 U.S. 115 (1989).

128 See Telecommunications Act of 1996, Committee Report, Title V, p. 45, available on the Internet in June 1996, <http://www.bell.com/kreport.html>.

129 See note 108.

130 See Sable Communication v. FCC, and Butler v. Michigan (1957), which judged unconstitutional a law that "reduce[d] the adult population (...) to reading only what is fit for children".

131 The most famous are : the American Civil Liberties Union (A.C.L.U.) and the Electronic Frontier Foundation (E.F.F.), which have a web site at the following addresses : <http://www.aclu.org> and <http://www.eff.org>.

132 See an Open Letter from E.F.F. to Internet Providers and Users, EFF Web Site, Feb. 12, 1996 : <http://www.eff.org/pub/alerts/eff_cda_compliance_021296.letter>.

133 According to Chief Judge Dolores K. Sloviter, the censorship scheme would have a negative effect on Internet sites containing "a great deal of material not offensive to anybody". See ACLU v. RENO : Trial Update, ACLU Press, April 15, 1996, <http://www.aclu.org/news/n041596b.html>.

134 58 F. 3d 654, 622-63 (en banc) (D.C. Cir. 1995).

135 See Telecommunications Act of 1996, Committee Report, p. 45.

136 e.g. Dial Information Services Corp. Of New York v. Barr, 502 U.S. 1072 (1992) and Alliance For Community Media v. FCC, 56 F. 3d 105, 1124-25 (D.C. Cir. 1995).

137 See Alan Lewine, Draft Outline of Constitutional Argument against CDA, 29 March 1996, <http://www.dcez.com/~alewine/cda96/960329outline.html#4.1.7> . Majorities of the Lewine arguments are based on the principle that the Internet is a library. That question will be developed in the Chapter two, because of its implication on the access providers liability.

138 See the Section I.

139 and the F.C.C. has no jurisdiction to regulate the Internet, that shows the Internet was not really assimilate to radio, or T.V. broadcasting.

140 This question is araised by Eugene Volokh, Freedom of Speech on the Infobahn, Law Library of Chicago Web Site, p.20 and 21, available on the Internet in May 1996 : <http://law.lib.uchicago.edu/forum/volokh.html>.

141 See Marc L. Caden and Stephanie E. Lucas, op. cit., p. 9 and 10. The Cox and Wyden amendment mainly prohibited the FCC from imposing any regulation on the content of the Internet and emphasised the importance of the responsabilitity of individuals ans parents. It also gave a certain immunity to access providers who take measures in order to restrict access by minors to obscene or indecent documents, if necessary, by means of software which filters or block access. Such an amendment was more in accordance with our proposition (see Chapter I - Section I - § 2.2.3. Interactivity and Regulation). See C. Lamouline and Y. Poullet, op. cit., p. 42 and 43.

142 See Section I.

143 See Section I - § 2.1.

144 ACLU v. Reno : Trial Update, A.C.L.U. Press, p. 2. Because the CDA liability system constitutes the debate climax about the amendment constitutionality, we will be ending our reflection in Chapter II - Section II dealing with the law enforcement.

145 See Anne Wells Branscomb, Internet Babylon ? Does the Carnegie Mellon Study of Pornography on the Information Superhighway Reveal a Threat to the Stability of Society ?, Georgetown Law Journal, Vol. 83, p. 1936 and 1937.

146 See note 109.

147 "...and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized".

148 See the Chapter I - Section II.

149 See Robin Widdison, Lawyering on the Internet, 1995, available on the Internet in March 1996, <http://www.ncl.ac.uk/~nlawwww/articles1/widdis1.html>.

150 M. Stubel did it concerning messages spread through the Minitel, see Xavier Stubel, Messagerie Télématique et Droit Pénal, Mémoire DEA, Montpellier, 1987.

151 See C. Lamouline and Y. Poullet, op. cit., p. 28.

152 In this manner, electronic publishing that are sent to their subscribers thanks to the e-mail address, cannot be assimilated to a private communication when subscribers have no tie between us.

153 But this principle does not impede states to take some restrictive measures provided they are "in accordance with the law", are "necessary in a democratic society in the interest of national security", and justified by certain purposes which are the same as those defined in the article 10 : see note 109.

154 e.g. ECHR, X and Y v. The Netherlands, 26 March 1985, Publ. Com, Serries A, vol. 91, page 11.

155 See e.g. Section 43 - Chapter VI of the French Act of 1978 that threat with penal prosecution any person who undermines privacy of individuals.

156 i.e. when any person can participate.

157 We share this point of view with, among other, Patrick Nicoleau, La Protection des Données sur les Autoroutes de l'Information, Recueil Dalloz-Sirey, 14e cahier, Chronique p. 111 to 116, 1996, p. 113.

158 The classification is inspired by the text of the U.D.H.R.

159 See T.G.I. Paris, Ord. Réf., 18 January 1996, Mme Mitterrand et autres v. Gubler et autre, JCP, Ed. G., n°8, Jurisprudence (1996), 22589, p. 87 to 89. According to this decision, the respect of private life make an exception to the Freedom of Expression. See also the commentary of Eric Agostini, Le Grand Secret, Rec. Dalloz, 7e cahier, Chronique (1996).

160 See J.C Guédon, op. cit., p.118-119.

161 For information about these Conventions see FAQ about Copyright by Terry Carroll, 1993, available on the Internet on May 1996 : <http://www.cis.ohio-state.edu>.

162 See Association littéraire et artistique internationale, L'Informatique et le Droit d'Auteur, op. cit., p. 64 to 67.

163 The patrimonial right includes the right to copy, to modify, to distribute and to spread the work to the public; whereas the moral right, which is not recognize by all nations, protects the divulging , the paternity and the integrity of the work, i.e. only the author has the right to divulge his work and to determine the moment and the process requisite (e.g. art. L 121-2 of the French Code on Intellectual Property), he has the right to be recognized as the author of the work (e.g. art. 122-5 C.P.I.), and to be opposed to any modification of his work . For more information about the distinction between these rights see Philippe Langlois, Le Droit Moral des Auteurs et L'Internet, Lettre de L'Internet Juridique, le 28 fev 1996, available on the Internet : <http://www.argia.fr/lij/ArticleMars3.html> and Olivier Hance (1996), Business et Droit, Best Of Editions, 1996, p. 80 to 82.

164 See A. Lucas and H.J. Lucas (1994), Traité de la Propriété Littéraire et Artistique, Paris, Litec, 1994, p. 218-219.

165 The decision of Judge Whyte on 21 November 1995 in D.C. for the northern district of California is available on the Internet at the following address : <http://www.eff.org/pub/Legal/Cases/Scientology_cases/whyte_netcom_112195.order>. Dennis Erlich, a former minister of Scientology that decided to critic the Church, posted portions of the plaintiffs works on a BBS connected to the Internet through the facilities of Netcom On-Line Communications, Inc. The judge Whyte refused to dismiss the case against Netcom and Tom Klemesrud, but holds that some of Erlich's postings were not fair use under the Copyright Act.

166 See Olivier Hance, op. cit., 75 to 77 and, for more information about copyright infringements in the UK and USA, see Hilary E. Pearson, Information in a Digital Age - The Challenge to Copyright, The Computer Law and Security Report, n°12, March - April 1996 and David Loundy, E-Law, part IX on Copyright Issues, 1995, available on the Internet on March 1996, <http://www.leepfrog.com/E-Law/E-Law/Part_IX.html>

167 The Western Australia Supreme Court agreed that these comments was defamatory and awarded the plaintiff the sum of AU$40.000 plus interest : Rhindos v. Hardwick (W.A. Supreme Court, 31 March 1994, Ipp J). For a commentary of this case see Gordon Hughes and David Cosgrave, Legal Question Involving the Internet, The Computer Law and Security Report, Nov-Dec 1995, p. 322.

168 But since an Act of 13 December 1985, every kind of messages, even those which do not fulfilled the condition of publicity, spread through any audio-visual communication device, are likely to be respressed as offenses.

169 See Robert Vouin, Droit Pénal Spécial, Paris, Dalloz, 1988, p. 320 to 354.

170 This point of view could be confirmed by a recent case, see T.G.I. Paris (Ordonnance de référé), 16 April 1996, Ref 54240/96 : Yves Rocher was forced to erase libellous material, diffused through the Internet, against the BNP-Banexi group. The judge deemed that "any person who taken the responsibility for public distribution, by whatever means of communication, of remarks blaming the reputation of a third party must be at least able, if as in the case this disclosure constitutes an obviously illicit disorder, to justify the measures taken to put an end to the attack of third parties' rights or to limit the effects of such attacks".

171 e.g. Cass. Crim., 16 March 1971, Gaz. Pal. 1972.2.424.

172 e.g. Cass. Crim., 24 October 1972, Bull. Crim. 303.

173 e.g. New York Times v. Sullivan (1964), 376 U.S. 279-80

174 #568 of Restatement (second) of Torts (1989).

175 See Duncan Calow, Defamation on The Internet, The Computer and Law Security Report, Jul-Aug 1995, p. 199.

176 For more information about defamation in the USA see David Loundy, Op, Cit, Part V : <http://www.leepfrog.com/E-Law/E-Law/Part_V.html>.

177 N.Y. Misc. LEXIS 229, No. 31063/94 (1995). See IT Law Today, Volume 4, Issue No.3, March 1996.

178 See Robert Derumes, Le Centre pour l'Egalité des Chances et la Lutte contre le Racisme réagit, Le Ligueur, 7 Feb. 1996.

179 Added by the French Act of 13 July 1990 (Loi Gayssot).

180 e.g. Cass. Crim. 28 March 1955, Bull. Crim. N°184.

181 e.g. T. Corr. Paris, 15 April 1986, Rev. Sc. Crim. 1987. 209.

182 e.g. Cass. Crim. 29 October 1936, Bull. Crim. n°104. The provocation has to be a conscious manoeuvre, which aims to overexcite the minds and to create mentality calling for the infringement, T. Corr. Paris, 15 April 1986, above-mentioned.

183 See C.A. Paris, 31 October 1990, Gaz. Pal. 1991. 1.311.

184 The article 24 refers to the art 23 that punishes the incriminated speech expressed through public discourses, shouted speeches, threats uttered in public places or meetings, or through written words, printed words, drawings, engraving, paintings, pictures... or any other medium for written words, speech, picture (French Act of July 1st, 1972), and any audio-visual communication device (French Act of 13 December 1985).

185 See Michael Meyer, Whose Internet ?, Newsweek, April 22, 1996, p.42 to 46.

186 That was the opinion of Judge Learned Hand in Masses v. United States (1917).

187 Brandenburg, 395 U.S. 444 (1969). See the analysis of Cass R. Sunstein, op. cit., p. 4.

188 U. S. v. Progressive, 467 F. Supp. 990 (W.D. Wis. 1979). See the analysis of David Loundy, <http://www.leepfrog.com/E-Law/E-Law/Part_V.html>.

189 18 U.S.C. $875(d).

190 Nevertheless, Georgia recently enacted, on 12 April 1995, a statute prohibiting the computer transmission of bomb-making instructions. See 1995 Ga. Laws 322.

191 "Culturellement, [la mondialisation] c'est la promiscuité de tous les signes et de toutes les valeurs, c'est à dire la pornographie. Car la succession, la diffusion mondiale du tout et du n'importe quoi au fil des réseaux, c'est cela la pornographie". Jean Baudrillard, Le Mondial et l'Universel, Libération, Monday 18 March 1996, p. 7.

192 This Study was made in the Carnegie Mellon University. See Marty Rimm, Marketing Pornography on the Information Superhighway, The Georgetown Law Journal, Volume 83, Issue 5, available on the Internet in May 1996 : <http://TRFN.pgh.pa.us/guest>, this site also gives links to the criticisms of the study.

193 See Patrick Nicoleau, op. cit., p.113 and Michel Vivant (1995), Lamy Droit de l'Informatique, Paris, Lamy S.A., 1995, n°1829. The texts of Articles 227-23 and 227-24 are the following :

- Art. 227-24 : "Le fait soit de fabriquer, de transporter, de diffuser par quelques moyens que ce soit et quel qu’en soit le support un message à caractère violent ou pornographique ou de nature à porter gravement atteinte à la dignité humaine, soit de faire commerce d’un tel message, est puni de trois ans d’emprisonnement et de 500 000 F d’amende lorsque ce message est susceptible d’être vu ou perçu par un mineur (...)".

194 458 U.S. 747 (1982).

195 See David Loundy, op. cit., p. 120 to 123.

196 See Yves Eudes, Cannabis Connexion, Le Monde, supplément multimédia, Monday 8 April 1996, p. 29.

197 See Cass. Crim. 9 janv. 1974, B. Crim., n°15 : the court held that the distribution of postal cards, which promoted the consumption of the L.S.D., was illicit.

198 See Francis Caballero (1989), Droit de la Drogue, Paris, Dalloz, 1989, p. 538 to 543.

199 e.g. Cass. Crim. 20 April 1982, Lexis.

200 Calvacom, Eunet, Axone, Oléane, Compuserve, Francenet, Internetway, GIP Renater, and Imaginet. See T.G.I. Paris, 12 June 1996, Réf.53061/96. It should be pointed out that, during the trail, the U.E.J.F. modified its writ to ask access providers the creation of an ethical charter. At the end, different ethical agreements has been taken by certain parties.

201 18 U.S.C. # 167 1462 and 1465. The jugment of the United States Court of Appeals for the sixth Circuit of January 29, 1996 is available on the Internet at the following address : <http://www.eff.org/pub/Alerts/us_v_thomas_appeal.decision>. Thomas was operating the Amateur Action Computer Bulletin Board System (AACBBS) from their home, which features included obscene and indecent e-mail, chat lines, public messages and files that members could access and transfer to their own computers and printers. They also use computer devices to purchase, sell, and deliver sexually-explicit videotapes to AABBS members, who was able to order the tapes by sending Robert Thomas an e-mail message. In July 1993, a United States Postal Inspector received a complaint from an individual. On January 10, 1994, a search warrant was issued by a U.S. Magistrate Judge for the Northern District of California to seize the computer defendant system.

202 See Frédérique Olivier et Eric Barby, Des Réseaux aux Autoroutes de l'Information : Révolution Technique ? Révolution Juridique ? 2.- Du Contenu Informationnel sur les Réseaux, JCP, Ed. G, n°19, Doctrine (1996) 3928, p. 179 to 186.

203 that interconnects the Minitels.

204 See Michel Vivant (1995), Lamy Droit de l'Informatique, Paris, Lamy S.A., 1995, p. 1190.

205 T.G.I. ch. Corr. Draguigan, 15 May 1992, Petites Affiches 1992 n° 141, p. 12, obs. Huet J.

206 e.g. see Anderson v. New York Tel. Co., 320 N.Y. 2d 647 (N.Y. 1974). This case implicated the liability of a common carrier for the transportation of illicit telephonic messages, which he had a reason to know the content.

207 See Frédérique Olivier et Eric Barbry, op. cit., p. 185.

208 See Henry H. Perritt Jr, The Congress, the Courts and Computer based Communication Networks : Answering Questions About Access and Content Control, Villanova Law Review, Vol 38, N° 2, 1993, p. 337 to 339. See also David Loundy, op. cit., <http://www.leepfrog.com/E-Law/E-Law/Part_XI.html>.

209 e.g; this is the opinion of Jonathan Wallace, co-author of the book Sex, Laws and Cyberspace (1996) with Mark Magan (summary available on the Internet at the following address <http://www.spectacle.org/freespch/>).

210See Eric C. Jensen, An Electronic Soapbox : Computer Bulletin Board and the First Amendement, 39 Fed. Com. , L.J. 217 n° 50, 1987, cited by David Loundy, op. cit, part XI.

211 This is the same in France, however the French Act of January 4, 1967 forbids booksellers to sell publications, that present crime, lying, theft, laziness, cowardliness, hate, and debauchery in a favourable light, to minors.

212 361 U.S. 147 (1959).

213 e.g. Seton v. American News. Co. (1955), 133 F. Supp. 591 (N.D. Fla. 1955).

214 776 F. Supp. at 137 (1991).

215See note 177. See also the analysis of Marc L. Caden and Stephanie E. Lucas, op., cit., of Christian Lamouline and Yves Poullet, op. cit., p.44, and of David Loundy, op. cit., <http://www.leepfrog.com/E-Law/E-Law/Part_XI.html>.

216defined as "toute mise à disposition du public ou de catégories de public, par un procédé de télécommunication, de signes, de signaux, d'écrits, d'images, de sons ou de messages de toute nature qui n'ont pas le caractère d'une correspondance privée" (Art. 2, al. 2).

217 See the French Minister of Justice circular of February 17, 1988, that qualifies telematic press services as press publishing, obliges them to show the name of the publication director and the redaction responsible.

218 See C.A. Amiens, 30 July 1991, confirmed by Cass. Crim., 17 November 1992 (arrêt de principe), JCP 1993, éd. G, IV, 598. The Cassation Court states that the exploitation responsible is the main author of the infraction. This decision follows a certain number of opinions such as the AFTEL (Association Française de la Télématique) one which deems that the service provider must assume the entire editorial liability in the framework defined by law.

219 Some authors still made the analogy by considering the Internet network as a wide classical telematic network, but they generally deem that the Internet involves specific judicial issues that have not been raised by the Minitel, and so requires a different view. See Nathalie Mallet-Poujol, Autoroute de L'information : Les Grandes Manouvres Juridiques..., Les Petites Affiches, 2 Febuary 1996, n°15, p. 4 to 9. See also Frédérique Olivier et Eric Barbry, op. cit., 183 to 184.

220 Compuserve is one of the biggest service provider that exists in the world.

221 See the analysis of Richard Raysman and Peter Brown, Computer Law : Liability of Internet Access Provider Under Decency Act, The New York Journal, March 12, 1996, available on the Internet : <http://www.brmlaw.com/doclib/complaw31296.html>.

222 See the opinion of Judge Sloviter in ACLU v. Janet Reno (D.C. 11 June 1996), available on the Internet : <http://www.access.digex.net/~epic/cda/cda_opinion.html>.

223 Which stated that government decisions should not be too restrictive when they intend to give exceptions to the First Amandment. See the Chapter I - Section II.

224In the French law, the "obligation de moyen" obliges someone to use all possible means to succeed in his mission. This person will not be judged on the result. The concept of "obligation de moyens" and "obligation de résultat" are mainly used in the civil law, more exactly in the contractual law fields.

225 The C.S.T. was created in 25 February 1993 to give ethical recommendations connected with telematic fields (Minitel and Audiotel). Its prerogatives will now by extended to the Internet and will be placed under the C.S.A. supervision. It will be composed of users and professional representatives such as editors, access providers and SYSOPs. Its president will be pointed out by the C.S.A.

226 "Les personnes mentionnées à l'article 43-1 ne sont pas pénalement responsables des infractions résultant du contenu des messages diffusés par un service de communication audiovisuelle (...) sauf s'il est établi qu'elles ont, en connaissance de cause, personnellement commis l'infraction ou participé à sa commission".

227 See Yves Eudes, Vers Une Tutelle pour l’Internet Français, Le Monde, supplément multimedia, 10 June 1996.

228 See also the analysis of the A.U.I. on the inconvenient and the ineffectiveness of the address and services filtering software. <http://www.aui.fr/Dossiers/Amend-fillon/analyse-amend.html>.

229See Planète Internet, n° 11, p. 21, September 1996.

230 The fundamental question raised by the international environment is the following : which law should prevail in the case of conflict ? Yves Poullet and Christian Lamouline deem that it would be better to choose the criterion of the site of transmission, i.e. to implement the law of the transmission site, mainly because "if we give precedence to the law applicable to the site of reception, this would mean every originator would have to take into consideration all the foreign legal systems involved before the transmission, since in an interactive environment, it is highly difficult to foresee which public will have access to that information.", see Y. Poullet and C. Lamouline, op. cit., p. 45.

231 e.g. see Article 1134 of the Napoleon Code.

232 Some filtering software requires a password to provide access to certain sites.

233 See Christian Lamouline and Yves Poullet, op. cit., p. 44 to 45.

234 Some authors propose to reverse the traditional cascade system of liability of press editor by first holding liable the primary source of information. See F. Olivier and E. Barbry, op. cit., p. 185.

235 See introduction of this Section, see also Géraldine Danjaume, La Responsabilité du Fait de l'Information, La Semaine Juridique (JCP), Ed. G, n°1, Doctrine (1996), 3895, p. 5 to 12.

236 See Olivier Hance, op. cit., p. 197.

237 e.g. Article L 132-1 of the Consummation Code declares null and void those of clauses that deprive the consumer of the latent defect guarantee, which is a public order disposal of the Civil Code (Articles 1603, 1625, and 1641). However, this guarantee will not be used in the fields of services providing or concession of incorporeal goods including information. See Olivier Iteanu (1996), Internet et le Droit, Aspect Juridique du Commerce Electronique, Paris, Eyrolles, 1996, p. 157 to 160.

238 Certain American service providers already have their own guidelines. They exclude those of subscribers who do not follow them. See Natacha Quester-Séméon, Net et Bavures, Télérama, Le Délire Multimédia, Hors Série, p. 72, 1996.

239According to J. Reidenberg, op. cit. : "network systems themselves need recognition as direct form of government", p. 9.

240 Because pedophile activities are favored by computer networks, this problem will be discussed during the next Stockholm meeting on minors prostitution. See Claire Brisset, Enfances décomposées, Le Monde Diplomatique, August 1996 : "Pour ce qui concerne la France, les organisateurs de la conférence de Stockolm se montrent extrêmement critiques à l’égard du Minitel, dont on sait qu’il est (...) un relais efficace de la prostitution, y compris des mineurs. Plus généralement, le détournement de procédés plus modernes de communication - Internet au premier chef - fait naître de très fortes inquiétudes.", p. 24.

BIBLIOGRAPHY

- Asimov, Isaac (1957), The Naked Sun, New York, SFBC, 1995.

           . Internet dans l’Oeil des Policiers du Monde entier, Le Monde, p. 3, Thursday August 1st, 1996.

- Sunstein, Cass R., In Cyberspace, Constitutional Lawyers Should Be Quiet, Law Library of Chicago Web Site, <http://law.lib.uchicago.edu/forum/sunstein.txt> (document updated, for more information, see : <http://www.spc.uchicago.edu/depts/polsci/people/faculty/sunstein.htm> or <http://www.law.uchicago.edu/Publications/index.html>).

Acknowledgements

I would like to thank all the people who helped me to realize this work : Yves Poullet, head of the CRID in Namur, for his advises, his support, and particularly for having accepted to promote this thesis; among the members of the CRID, Kamel Abbas, for his recommendations, Sandro Bazanella, who helped me to understand the complexity of the Internet, Etienne Montero, Christian Lamouline, for his ideas and Jacques Gérard; among the members of the CITA, Marie d'Udekem-Gevers; all the members of the GERSULP and notably Baudouin Jurdant for his encouragement; and those who were always disposable in Namur to advise me : Gérard Fourez, Tien N'Guyen, Dominique Dieng, and Mireille Meert.

A special thank to Valérie Sédallian, lawyer in Paris and director of the La Lettre de l'Internet Juridique, for having answered to my e-mails.

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