Criminal protection for private law rights in the digital age

AuthorMr. Nicolas Bonnal
PositionConseiller à la Cour de cassation (chambre criminelle)
[2018] Irish Judicial Studies Journal Vol 2(1) 29
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’.
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
which included free public access to online communication among the
Alain Bensoussan, Informatique Télécoms Internet, Francis Lefebvre
Constitutional Council, 10 June 2009, decision no 2009-580 DC, Law promoting the spread and protection of the internet

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