Criminal protection for private law rights in the digital age

• Author: Mr. Nicolas Bonnal
• Position: Conseiller à la Cour de cassation (chambre criminelle)
• Pages: 29-40

IRISH JUDICIAL STUDIES JOURNAL

[2018] Irish Judicial Studies Journal Vol 2(1) 29

CRIMINAL PROTECTION FOR PRIVATE LIFE RIGHTS IN THE

DIGITAL AGE

Nicolas Bonnal

Conseiller à la Cour de cassation (chambre criminelle)

The two faces of the digital revolution, the generalisation of electronic

communication and the digitisation of most restocking processes and of data,

have become indissolubly linked. ‘There is less and less data handling without

communication and reciprocity’.

1

In these circumstances, if criminal law is to

retain its effectiveness in the areas which we are considering during this round

table, that is to say, the protection of the private rights of individuals, it can rarely

be spared the trouble of undergoing profound change.

Nevertheless, that fact is not to be imposed out of hand, and the reality of this

development is complex and multi-faceted. It would be more accurate to

distinguish, within this adaptation process, two main parallel trends.

The first trend consists of applying the existing concepts to the new purposes

with which the digitisation of our society presents the judge, either simply

because such development always outpaces the legislator, or because the

legislator assumes that digitisation has no effect on the definition and

prosecution of the classic criminal offences.

But such an approach is quickly seen to be limited, because the combination of

data handling and of electronic communication radically changes reality, modifies

behaviour and creates new risks. We come, therefore, to the moment of

novation, whether by the judge, developing the scheme of existing offences, or

the legislator, creating new offences, a delicate exercise because it requires the

criminal judge to become involved in an area which is highly technical, and in

addition, constantly changing.

In all stages of this process, such development cannot take place without

respecting the overriding principles of human rights guaranteed by the

Constitution, the European Convention on Human Rights, and the law of the

European Union. These principles have developed to take account of this new

reality, as shown by the important decision of the French Constitutional

Council,

2

which included free public access to online communication among the

1

Alain Bensoussan, Informatique Télécoms Internet, Francis Lefebvre

2

Constitutional Council, 10 June 2009, decision no 2009-580 DC, Law promoting the spread and protection of the internet