Personal freedom and cybercrime

“Cybercrime is the new threat of the 21st century”¹⁾S. Rolland, La cybercriminalité est la nouvelle menace du XXIe siècle, La Tribune, July 26, 2015 :

www.latribune.fr/technos-medias/internet/la-cybercriminalite-est-la-nouvelle-menace-du-xxie-siecle-485152.html

. The alert is not in vain, and can be explained by the rapid expansion of crime in the digital environment. Worldwide, 42.8 million cyberattacks were recorded in 2014²⁾C. Desjardin, Quand le cauchemar de la cyberattaque devient réalité, Les Echos, February 5, 2015 :

www.lesechos.fr/2015/02/quand-le-cauchemar-de-la-cyberattaque-devient-realite-199273

, or more than 117,000 attacks per day. In France as a whole, 2019 will have seen records broken, with 67% of companies victims of cyber attacks and only 10% able to cope. And not all survive.³⁾Bradley, 2020: La France championne des cyberattaques, Silicon, November 28, 2019 https://www.silicon.fr/ avis-expert/2020-la-france-championne-des-cyberattaques. This year 2020 has thus begun with 7 security alerts, 1 threat and incident, 130 security advisories and 1 compromise indicator⁴⁾Centre gouvernemental de veille, d’alerte et de réponse aux attaques informatiques, attacks published as of March 9, 2020 :
https://

www.cert.ssi.gouv.fr

.

With regard to individual freedom, it can be defined as the “fundamental right to do anything that society does not have the right to prevent”⁵⁾G. Cornu, Vocabulaire juridique, PUF, 10th edition. It is thus a “security guaranteeing individuals, which results from the fact that no one can be arrested or imprisoned except in the cases provided for by law and according to the forms prescribed in advance”. Examples of individual freedoms include freedom of expression, the right of access to the Internet, the right to privacy, the right to honor and consideration, and the “right to” protection against all forms of hatred…

Cybercrime can be defined as all “acts contravening (…) national laws, using networks or information systems as a means of committing an offence or crime, or targeting them”.⁶⁾Agence nationale de la sécurité des systèmes d’information, Defense and information systems security – Stratégie de la France : https://www.ssi.gouv.fr/uploads/IMG/pdf/2011-02-15_Defense_et_securite_des_systemes_d_information_strategie_de_la_France.pdf. Along with cyber defence, it is an integral part of the cybersecurity concept⁷⁾op. cit.. Its causes lie mainly in increasing digitization, technological progress, inadequate security measures and the transnational nature of the Internet.

It should be noted that the notion of cybercrime has been the subject of a progressive conceptual and criminal framework. Computer-related offences were initially opposed to content-related offences, depending on whether they were attempted or committed against or by means of an information and communication system.⁸⁾Law no. 88-19 of January 5, 1988 on computer fraud:
https://

www.legifrance.gouv.fr/affichTexte.do?

cidTexte=JORFTEXT000000875419&categorieLien=id
. These have now been joined by offences against the confidentiality, integrity and availability of data and systems, infringements of intellectual property and related rights, and racism and xenophobia on the Internet.⁹⁾Council of Europe Convention on Cybercrime of November 23, 2001:
https://

www.europarl.europa.eu/meetdocs/

2014_2019/documents/libe/dv/7_conv_budapest_/7_conv_budapest_en.pdf
. Lastly, a harmonized approach has been adopted for terrorist offenses.¹⁰⁾Framework decision of 13 June 2002 of the Council of the European Union on combating terrorism : https://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CONSLEG:2002F0475:20081209:EN:PDF and certain forms and manifestations of racism and xenophobia on the Internet¹¹⁾Framework decision of November 28, 2008 of the Council of the European Union: https: //eur-lex.europa.eu/legal-content/FR/ TXT/HTML/?uri=CELEX:32008F0913&from=EN.

To understand how individual freedom is affected by cybercrime, we need to look at the rights and freedoms applicable to the digital environment. (I), then its restrictions (II).

I – Rights and freedoms applicable to the digital environment

1. Freedom of expression and the right of access to the InternetFreedom of expression in general is a fundamental right in a democratic society¹²⁾Decision no. 2009-580 DC of June 10, 2009: https://www.conseil-constitutionnel.fr/decision/2009/2009580DC.htm. This implies that “no one (should) be troubled for his opinions (…) provided that their manifestation does not disturb the public order established by the Law”.¹³⁾Article 11 of the 1789 Declaration of the Rights of Man and of the Citizen: https://www.legifrance.gouv.fr/Droit-%20francais/Constitution/Declaration-des-Droits-de-l-Homme-et-du-Citoyen-de-1789">https://www.legifrance.gouv.fr/Droit- francais/Constitution/Declaration-des-Droits-de-l’Homme-et-du-Citoyen-de-1789. Freedom of expression “online” is moreover protected, like all other fundamental rights “offline”¹⁴⁾Council of the European Union May 12, 2014 guidelines: http://data.consilium.europa.eu/doc/document/ST-9647-2014-INIT/fr/pdf¹⁵⁾Council of the European Union January 13, 2016 guidelines :
   https://rm.coe.int/09000016805c1ecd
   . As with many other rights, this means that freedom is the principle, and prohibition the exception.the right of access to the internet thus derives from this freedom of expression¹⁶⁾op. cit. Decision no. 2009-580 DC of June 10, 2009and gives it a particular breadth due to a general absence of filtering or selection, which is usually de rigueur in public modes of expression.¹⁷⁾A. Lepage, The Internet in relation to the law of July 29, 1881 on the press: a means of communication like any other?in: A. Lepage (ed.), Digital opinion. The Internet: a new public spiritNovember 2, 2006. It is thus “one of the most precious instruments of one of the most precious human rights”¹⁸⁾Conseil d’Etat’s 2014 annual study – Digital and fundamental rights, September 9, 2014:
   https://
   
   www.vie-publique.fr/rapport/34281-etude-annuelle-2014-du-conseil-detat-le-numerique-et-les-droits-fonda
   
   , as well as a fundamental right¹⁹⁾op. cit. Conseil d’Etat Annual Study 2014 – Digital and fundamental rights, September 9, 2014.
2. Online right of reply
   This right of reply applies broadly to “any person named or designated in an online public communication service”.²⁰⁾Law no. 2004-575 of June 21, 2004 on confidence in the digital economy: https://www.legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT000000801164except “when users are in a position, due to the nature of the online public communication service, to comment directly on a message that implicates them”.²¹⁾Decree n°2007-1527 of October 24, 2007 relating to the right of reply applicable to online public communication services and taken for the application of IV of article 6 of law n° 2004-575 of June 21, 2004 for confidence in the digital economy: https://www.legifrance.gouv.fr/affichTexte.do;?cidTexte=JORFTEXT000000428279. This means that people taking part in chat rooms and discussion forums would be excluded, as their interactive nature already allows for immediate, direct response. In addition, the recipient of the request to exercise the right of reply is identified as the director of the publication, which may constitute an obstacle to the exercise of this right, particularly in the event of the host’s reluctance to provide the identification data of the aforementioned director. The procedures for exercising this right must satisfy a number of conditions: time, form and substance; as must the procedures for publishing the response²²⁾op.cit. Decree no. 2007-1527 of October 24, 2007.Interestingly, the requestor can also ask for the message in question to be deleted or rectified. The publishing director then has three days to comply. Failure to publish the response within 24 hours may result in a fine of 3,750 euros²³⁾op. cit. Decree no. 2007-1527 of October 24, 2007.

II – Restrictions applicable to the digital environment

1. Invasion of privacyWhile there is no legal definition of privacy, authors of legal doctrine consider it to be “a secret sphere of life in which the individual has the power to exclude third parties”.²⁴⁾Carbonnier, Droit civil : Les personnes, tome I, 20th edition, 1996, n°86or as “everyone’s private sphere”.²⁵⁾Cornu, Vocabulaire juridique, PUF, 10th edition. It is still possible to propose a few elements that make up private life: family life, emotional life, image of people, image of their property, health, religious convictions, tax advertising, financial life, leisure activities, death, information that can be freely consulted, information from civil status registers after a period of 75 years has expired. However, this notional gap does not detract from the need for double protection of private life. On the one hand, its civil protection²⁶⁾Article 9 of the Civil Code:
   https://
   
   www.legifrance.gouv.fr/affichCodeArticle.do?
   
   idArticle=LEGIARTI000006419288&cidTexte=LEGITEXT000006070721&dateTexte=19940730
   can justify to the judge all measures likely to prevent or stop the infringement. On the other hand, its criminal protection²⁷⁾Articles 226-1 to 226-7 of the penal code: https: //www.legifrance.gouv.fr/affichCode.do;jsessionid=8981B9C43EC7A1790EB31FDE8B677607.tplgfr22s_2?idSectionTA=LEGISCTA000006165309&cidTexte=LEGITEXT000006070719&dateTexte=20020101 is designed to prevent or punish the voluntary invasion of privacy by any means. By capturing, recording or transmitting words spoken in a private or confidential capacity. Fixing, recording or transmitting the image of a person in a private place without their consent. The said private place being a place that is not open to anyone unless authorized by the person occupying it.²⁸⁾Initially CA Besançon, January 5, 1978, more recently CA d’Aix-en-Provence, January 9, 2006: https:// www.legifrance.gouv.fr/affichJuriJudi.do?idTexte=JURITEXT000006949097 (The most frequent cases of non-infringement of privacy are as follows: facts previously disclosed²⁹⁾TGI Paris, 17th Chamber, December 17, 2014, No. 13/12734: https://
   www.doctrine.fr/d/TGI/Paris/2014/
   FRCB250CB73A93345F35CDan unidentifiable person³⁰⁾Civ 1st, April 9, 2014, no. 12-29.588: https://
   www.legifrance.gouv.fr/affichJuriJudi.do?
   idTexte=JURITEXT000028843900a surname used alone as a meta tag³¹⁾Civ 1st, September 10, 2014, no. 13-12.464: https://
   www.legifrance.gouv.fr/affichJuriJudi.do?
   oldAction=rechJuriJudi&idTexte=JURITEXT000029453517&fastReqId=1053008442&fastPos=1and geolocation carried out under the supervision of the Public Prosecutor.³²⁾Crim, October 15, 2014, 12-82.391 and 14-85.056 :
   https://
   
   www.legifrance.gouv.fr/affichJuriJudi.do?
   
   oldAction=rechJuriJudi&idTexte=JURITEXT000029606490
   .
2. Defamation, insult and denigration must be dealt with first. Defamation consists of an allegation or imputation of a fact that is prejudicial to the honor and consideration of a person or body to which the fact is imputed.³³⁾Freedom of the Press Act of July 29, 1881: https: https://www.legifrance.gouv.fr/affichTexte.do?%20cidTexte=LEGITEXT000006070722">//www.legifrance.gouv.fr/affichTexte.do? cidTexte=LEGITEXT000006070722. The person being prosecuted is then presumed to be acting in bad faith, unless he has the right to free criticism.³⁴⁾TGI Paris, 3rd chamber, October 19, 2007, no. 06/11874: https: //www.legifrance.gouv.fr/affichJuriJudi.do?idTexte=JURITEXT000018863985. Defamation should be distinguished from insult, which is an outrageous expression, or terms of contempt or invective containing no imputation of fact³⁵⁾op. cit. Freedom of the Press Act of July 29, 1881. The excuse of provocation may be invoked, provided there is a direct link between the insult and the provocation. Defamation and insult should also be distinguished from disparagement, which consists in publicly discrediting a person or company by criticizing its products or work in order to harm it, even in the absence of competition³⁶⁾cit. Freedom of the Press Act of July 29, 1881. Next, we need to deal with certain manifestations of hatred. On the one hand, denial of the existence of one or more crimes against humanity³⁷⁾Law no. 90-615 of July 13, 1990 to suppress all racist, anti-Semitic or xenophobic acts: https:// www.legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT000000532990, such as Holocaust denial. On the other hand, racist acts and their increased criminalization³⁸⁾Law no. 90-615 of July 13, 1990 to suppress all racist, anti-Semitic or xenophobic acts: https:// www.legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT000000532990&dateTexte=20200310, both in terms of motive and limitation periods. Lastly, the dissemination of recordings of images linked to the commission of offences carries a penalty of five years’ imprisonment and a fine of 75,000 euros.³⁹⁾Law no. 2007-297 of March 5, 2007 on the prevention of delinquency: https: //www.legifrance.gouv.fr/ affichTexte.do?cidTexte=JORFTEXT000000615568&categorieLien=id.

Ultimately, the impact of cybercrime on individual freedom is a reality, and anyone can be affected. Its paradox is that it has become commonplace, given the growing number of victims, while remaining highly innovative, given the technical and technological resources deployed by its perpetrators.