Présentation
Intégralité en html
Résumé en français
Résumé en anglais
Summary
Many political discourses try to promote the development of a
data and information network at national and international level through the myth of the
Global Village. Whereas the new technology environment is supposed to mostly respect
individuals, many abuses occur on the Internet, a network of networks, often seen as
foreshadowing the "Information Superhighways". In fact, many public messages
deal with revisionist, terrorist or pornographic subjects, and question the total freedom
of expression that exists on the network. Such a situation could call for a regulation.
However, according to the Libertarians, what occurs on the network belongs to the virtual
world, a world made of information, an immaterial space which transcends national
frontiers. Therefore, the "cyberspace" should not be apprehended by our physical
world laws. Moreover, the Internet seems to be beyond our traditional reasoning framework,
and challenges the application of local regulations. Nevertheless, the virtual world
encroaches upon the real one : defamatory or racist material may shock the sensitivity of
physical persons and terrorist messages question the national security. As a result, it is
necessary to control certain messages and to find another regulatory paradigm capable to
pass over the difficulties raised by technical characteristics of the Internet.
But the Libertarians put forward a second argument, more judicial : the diffusion of
information is protected under many national declarations of human rights. The regulation
of this new medium may be illegitimate in the sight of the sacred Freedom of Speech. Since
this principle accepts some restraints, such an argument vanishes... Now
that a regulation is proved to be possible and legitimate, the main question is : how can
the substantive law control litigious messages spread on the Internet ? Is our legal
framework able to apprehend abuses that occur through the network ? First it should be
noted that both public and private messages can be sent through this medium. This implies
two different juridical systems. We deem that public messages are those spread from
certain Internet services, which aim to reach a great number of individuals. Such messages
can be apprehended by our laws, which regulate certain public messages diffused "by
any means". Hence, many nations forbid to present pornographic material to any
public, to incite to drugs consumption , to publicly question the holocaust, to diffuse
dangerous instructions or to infringe Copyright laws. But how judges can implement
existing regulations over the virtual world ? Only access providers are
known by authorities and can directly be held liable for illicit messages reachable from
their services. However, every access providers cannot reasonably be implicated. Those who
ignore the content they provide should be free from liability. Furthermore, certain access
providers are established in a remote country and do not necessary have to be liable in
the sight of other national laws. Since the jurisprudence is not yet firmly established,
both American and French legislator intervened. But the recent Acts are too vague and
overboard. They do not consider the necessity to adopt a new regulatory paradigm, i.e. to
take into account the decentralized and global nature of the network, the international
environment and the fact that the Internet is an interactive medium that enables
self-regulation. Eventually, the legislator should give more responsibilities to
individuals by promoting a contractual regulation and self-control devices.
