Controlling illegal content over the Internet
Par Valérie SEDALLIAN
Avocat à la Cour de Paris
Paper presented during the debate » Censoring the Internet : a lawyer’s deceit » of the Media Law Commitee, 26th International Bar Association Conference, Berlin, 23 October 1996
1- AUI DETAILS (1)
The AUI, the Association des Utilisateurs de l’Internet (Association of Internet’ Users) is a not-for-profit, independent organisation, which was created in February 1996. The AUI works to promote the development and democratic use of electronic networks, although most activity is focused upon the Internet. Its primary purpose is to assist in the support of activity in favour of keeping the Internet cooperative and open. Its activities include providing relevant information to Internet users, following and participating in the improvement of various technical aspects of the Internet, acting in direction of a better understanding of what Internet is and what it may mean in terms of social and economical developments. It also supports actions in favour of more flexible laws concerning cryptography. The AUI is taking part in a working group of the NIC-France on French domain names and has been auditioned by the Consultative Commission of Human Rights which has created a working group on racist activities over the Internet. The AUI is a founding member of the Global Internet Liberty Campaign (GILC). Other founding members currently include : The American Civil Liberties Union, the Electronic Privacy Information Center, the Human Rights Watch, the Internet Society, Privacy International and other civil liberties and human rights organisations.
2- AN INTRODUCTION TO THE INTERNET
The Internet is the largest online network in the world. Internet users connect to the network though an Internet Service Provider. Users can communicate privately on the Internet via the exchange of e-mail and related services, or by accessing public services that are available to all Internet users. The most popular public service of the Internet is the World Wide Web, which permits access to a vast amount of information supplied from computers known as « Web Servers » since they serve information to other users of the Web. The Internet also provides access to online discussion groups called newsgroups and collectively known as Usenet. Usenet can be described as a huge database of messages, generally grouped by subjects of discussion. The Internet has characteristics that makes it different from other media: it is decentralised as no other medium has ever been. Because it consists of many loosely connected computers and has many different routes for allowing robust communication and transfer of information, no unique point of control exists. In addition, users of online networks are also producers of information: since the users are free to select the information they want to view, the sites visited may reflect their interests to some degree. At the moment, there isn’t necessarily an intermediary between the consumers and producers of information on the Internet. Science Fiction aside, the Internet is not really a different world, and thus it often reflects what goes on in the « real world ». And of course, since offensive language and thought can be found in the real world, it can also be found on the Internet. This is the heart of the current debate over the future of the Internet: Who will control the flow of information? Who will determine what speech and information is offensive, or dangerous? Many Governments would like to have complete control of this new medium which does not respect the traditional rights of sovereignty and territorial borders. The ability to censor is perceived as central to the self interests of many governments and agencies. However, the decentralised and international nature of the Internet is a serious challenge to censorship. Certain technical aspects of the Internet make censorship very difficult. In democratic countries where freedom of speech is valued as being of fundamental importance, any attempt to create specific legislation for the Internet may not only be ineffective but also raise the issue of civil rights abuse. But it does not mean that existing law should not apply to the Internet. I will first examine a number a of recent French cases involving the Internet. After the American Congress passed the Communications Decency Act, the French parliament attempted to enact legislation regulating the Internet. Although the law was later struck down by the French constitutional Council, I would like to examine the system as envisioned in the legislation. Finally, as the Internet has rapidly moved from a relatively small society of scientists, researchers and students to a large, diverse community with many people from different backgrounds, cultures and motives, I will discuss what can be done and what should not be done in attempts to provide regulation.
3- FRENCH RECENT CASES
• Gübler’s affair
The Gübler affair was the first case concerning the Internet in France, and drew considerable attention to the actual existence of the Internet. In January 1996, a few days after the death of François Mitterrand, a book was published by Mr. Gonod, a journalist and the ex-personal physician of the President, Dr. Gübler. In it, the doctor stated that François Mitterrand had known about his cancer since the beginning of his first term in 1981 and also revealed many details about his illness and private life. In summary proceedings the Mitterrand Family obtained a court order banning the book for violation of privacy rights. Shortly after this order was issued, the manager of a cybercafé in Besançon scanned the book and put it on a web server in the name of freedom of expression. A few days later, the Web service was closed, but the book had already been reproduced in servers located outside France, including the server of MIT, an American University (2) well known for research on computer science. Neither the Mitterrand family, the publisher nor the authors of the book sued the cybercafé. Although the French media stated that existing law didn’t apply to the Internet, nothing could be more wrong: The cybercafe’s manager had reproduced a copyrighted book without authorisation and made it available to the public. Copyright Infringement is prohibited in France and many other countries. By putting the book on his server after it was banned, the manager of the cybercafé had also committed a civil offence, acting as an accomplice in breaching the medical privacy of Mitterrand.
• UEJF / Calvacom, Eunet, Axone, Compuserve and others (3)
In order to understand the UEJF case, we must define « negationist speech » for those unfamiliar with French law. French law provides that those who contest publicly the existence of various crimes against humanity as defined under article 6 (statutes of the international military court) of the London agreement of 8 August 1945 and that have been committed either by an organisation declared criminal by application of article 9 of the said statute, or by a person recognised as guilty of such crimes by a French or international jurisdiction will be punished by imprisonment of up to one year or/and a fine of 300 000 FF (4). In March 1996, the UEJF, a French Association of Jewish Students (Union des Etudiants Juifs de France) issued a writ against nine French Internet Providers on the grounds that the ISPs allowed their clients to access services with negationist messages and thus infringing French criminal law. The plaintiff asked the judge to give the defendants an injunction with penalties in order to prevent their clients from connecting to services that violate French law by allowing access to negationist information. According to the UEJF, the Internet providers had committed the offence of distribution of negationist messages and were liable under penal and civil law. The Defendants argued that they were providers of access, not of content, that the plaintiff’s demand would force them to control all message content, information and access on all services, in real time – and that this request was not only unreasonable, but also impossible to implement. During the proceedings, the UEJF asked that an expert be nominated by the judge to determine whether appropriate technical measures could be taken to block access to negationist servers. The demand was denied by the judge, who stated that :
« Judges are forbidden to give general and regulatory orders on the cases that are submitted to them. Moreover, freedom of speech is a fundamental value, of which jurisdictional courts are the guardians, and which can only be restricted in specific cases, and only under certain determined circumstances » (5). The judge felt that what was requested by the plaintiff was too broad and somewhat vague.
• World-Net and France-Net affair
On May 7th, 1996, the managers of two Internet providers, Worldnet and FranceNet were charged with distribution of child pornography. The two ISPs were accused of making pornographic images of children available to their subscribers on their news server. They were not charged because they were producers of child pornography but because a few of the Internet newsgroups they carried contained messages with pornographic images of children. These images were not posted by French users, but came from outside France.
Under 227-23 article of French penal Code : « The act, with a view to the distribution, production, or transmission of the image of a child when this image is pornographic is punishable by one year of imprisonment and a fine of 300,000 francs. The distribution of such an image , by whatever means, is punished by the same penalties. Penalties increase to three years imprisonment and a fine of 500,000 francs when the child is less than 15 years.«
After the criminal proceedings against their colleagues, many French Internet Services providers protested. Some cut access to the newsgroups for a few days, and the University network has blocked access to the whole