🚧 Having a good behavior in the digital space

I. THE TRANSFORMATION BY THE DIGITAL SPACE OF THE LEGAL CONCEPTION OF WHAT IS A "GOOD BEHAVIOR"

Let's go back to what it means legally for a human being to "have a good behavior", and more precisely to "behave well by oneself"  (A) in order to measure how for the first time the digital space, in that it is not framed, allows any person who desires, not to "hold", and therefore not to behave well to others, pouring streams of hatred and inaccuracy on everything and on everyone, without stopping (B).

A. WHAT IS TO "HAVE A BEHAVIOR" AND TO "HAVE A GOOD BEHAVIOR"? 

Because in order to have a "good" behavior (2), il is necessary firstly and foremost "to have a behavior which holds itself" (1). 

1. To hold by oneself 

To "hold" supposes an action in the duration: for example one holds an object when grasping it and maintaining it during a certain period of time. Thus, to hold supposes a resistance to time, a time that passes and which carries everything away, while, because one "holds", something can remain.

Thus, one must already be oneself identical in the time that passes in order to be able to fit into one's identity in an ever-changing environment. This founding discussion between Parmenides (Being) and Heraclitus (Becoming), decided by Plato who, by the notion of Person, injected what remains in what passes yet (and this is the beginning of History). The French Law professor Michel Vivant is right to open his law book devoted to the droit d'auteur  on the assertion that "Rien n'est immuable" (Nothing is immutable) ; the "author" is an uncertain category and as little permanent as are the rivers, it is indeed under the chamarred costume of so many neighboring rights, that the idea of ​​an ever-human creation remains. 

To obtain this permanence in a world that alway moves, the human being must keep, for example, to remember what they said: we can not stand if we have no memory, if we only live in the moment. Law is there to remind us of the promises our words make, even though we have changed since, even though things have changed since then. That is why it was so difficult to integrate in the positive technic of Contract Law the theory of the unforeseen because since always the river is at every moment different but it is the human being who, immersed in the river of events, as a person must yet remain in what they has said and "keep their promises", must remain in what they has done and "render account".

2. To behave "well"

Se tenir "bien" renvoie au fait que nous ne sommes pas seuls. Nous formons des sociétés avec des personnes qui sont différentes de nous, que nous ne connaissons pas, qui ne pensent pas comme nous, et qui sont pourtant à part égale dans la même société. 

Standing "well" refers to the fact that we are not alone. We form societies with people who are different from us, who we do not know, who do not think like us, and who are howerver equal in the same society.

These distant and abstract aliens, our political duty is to consider them as enjoying an equal "freedom" in a link of "equality" with "fraternity", even though they are not members of our family. They are foreign brothers. In their regard, we have the political and legal duty to "behave well!footnote-1572. 

This does not mean that we must seek to know them, to conceive them as members of our family (system of the Old Regime which elaborates a system of cloistered castes and intermediate bodies, in which we recognize only the one which has an effective link with oneself) but that we must recognize them as political equals. As the French Hight Court (Court of Cassation) has said, our contacts on Facebook are not really our "friends"!footnote-1544.

It is a political duty of fraternity, stressed by Aristotle, leading to a legal obligation of solidarity, the basis of social protection systems!footnote-1541, not supposing to think concretely that the other is my equal but obliging me to consider them as such, to act on them as if they were. In this, it is about "behaving well", whatever one thinks. This political duty is the foundation of a duty of life in society in that it is simply a question of "holding back" within oneself the harmful thoughts that we have for others: our hatred for them. About this too, Freud spoke very well.

We have the freedom to think that Jews, blacks, Arabs, homosexuals and women (this is often a package in the minds of some) are inferior beings, that we would like to slow down or even exclude. If we are with family or friends, we can say it and sing it. But what Law forbids is to say it publicly, to make books of it, to disseminate it to the public. To "hold well" is to hold inside all the harm we think of others and all the harm we wish them. Criminal Law, both for insulting and inciting racial hatred or homophobia, has delineated the line separating the intimate, even collective, where we can tell everything, from the public, space where you have to stay well because you are no longer between us!footnote-1581.

Political statements such as "I say aloud what everyone is saying in a whisper" or "I am simply uninhibited" are criminogenic because they encourage us not to behave well, and therefore not to stand at all. 

B. FOR THE FIRST TIME, A NO-NORMALISED SPACE ENABLING ANYONE NOT BEHAVING WELL

Now, the digital space makes it possible for someone not to stand because the person interacts with others in a multiplied and masked way not by the legal personality which is intimate with the identity, but on the contrary by virtual personnalities intimate with anonymity and multiple identities, false and instantaneous (1). In this way, these anonymous duplications that are contrary to the very idea of ​​"person" have the effect - even more are the means - of a surge of hate and massacre of this very idea of ​​person (2).

1. The digital world, place of masked and multiplied human beings, qualities in contradiction withe the legal notion of Person

In the digital space, in which everyone can enter, it is possible to create not even an identity but rather an avatar!footnote-1630: a personality that does not exist. Not only a "false account", but a person who does not exist and who will enter with a "profile" that does not correspond to any identity. Thus equipped with a kind of false passport, this person who is only digital can enter the circle of the dialogues but doesn't follow any rule, since they will not undergo any consequences of their misconduct because they don't exist. It thus this situation escapes the founding rule of the contradictory and the test of admissibility of the dialogue, described in particular by Perelman!footnote-1573. 

But personality is a precise and legal concept that was first developed in Law to translate a reality: a human being is thus "translated" as a "person" in the legal order. But it is also because of the effect of the Case Law to affix the quality of "person" on economic entities, not to translate a reality!footnote-1546 but to impute to him a responsibility, more particularly to reproach them effectively for accidents!footnote-1545 or allow third parties to obtain payment for damage or of services performed for their benefit. 

In the digital space, human beings or organizations act, develop strategies, reach out to others, multiply themselves, act anonymously, disappearing at the very moment when they have to answer for what they have just done or said. In this immaterial world, where Law can not seize bodies to trivially demand accounts, it is enough to give birth to appearances of existing beings to act without ever answering. Since it is possible to create endless new appearances, new false identities, new false faces, the more these voices multiply and the less the existence of actual beings becomes acquired and those who act behind these personalities which are just Potemkin strategies.

Today we are in a situation where the people we believe to speak to do not exist and where the real people who come to us are actually invisible. These depersonalized digital actors have often devastating behaviors for other human beings, who remain helpless.

2. The systematic attack on the dignity of others by depersonalized digital actors 

Recent studies show that the western world is becoming more and more sad and more and more dancing. Empirical academic studies conducted in the United States show that ubiquitous social networks refer people to an image of the world that makes them sad and febrile, effective atitude that changes their behavior in the digital world, then in a "real" world digitized!footnote-1547.. Because this sadness does not lead to a melancholic passivity (the spleen) but on the contrary expresses itself in energy, it is concretized by a general reproach to the world and to others.

Reproach is an action. An action that can be a sad action!footnote-1574. This is the case when one asserts, for example, that a world conspiracy organized by a minority has been so well conducted - notably through secrecy - for its sole benefit, the recurring theme of anti-Semitism. Conspiracy is a sad passion. But if one "stands well", as the reproach is an imputation to others of a harmful effect produced in the world, one does not say it. Except to have evidence, to follow a procedure, to hear defense from the others they accused, etc.

In this way, "conspiracy" is the very opposite of "accusation" in the legal sense of the term!footnote-1575. In this, it is the opposite of rationality, the general decline of which we have been able to underline!footnote-1548, and of which the particularity of its legal form is emphasized here, the legal rationality taking the path of the procedure!footnote-1549. 

Reproaches become not only irrational but insane and inadmissible when they take the form of incitement to racial hate, defamation, insult, hate speech. There should then be a consequence: in these cases, the perpetrator of these actions must answer in front of the Law, in particular before the criminal judge. But to answer in front of a judge, it is necessary to have technically "the aptitude", that is to say to be a "person" in the legal sense, that is to say to have an identity: a name for to be called, a domicile or a registered office to be located and summoned. However, the digital world by its inconsistency, its virtuality, its globality, allows to act without real identity and without being localized.

These "depersonalized" digital actors that we are are, no longer bound by this straitjacket of legal personality which, in advance, compels us, like a backbone, to keep us in time and to respond tomorrow to what we have said and did to others yesterday, to perform tomorrow what we promised yesterday, to justify tomorrow the accuracy of our remarks broadcast yesterday. No, this framework inherent to the notion of Person, as the person and their behavior in time on their  environment are inseparable!footnote-1550 being erased, the human being no longer stands, no longer responds in the time of what he or she does, does not consider others as their equal: the floodgates are open for the slaughter of others for everyone. It is observed at every moment.

Quid facere ? 

II. SOLUTIONS FOR INTRODUCING PERSONAL HOLD IN DIGITAL SPACE 

 One is a little helpless, except to give great credit to the only external Law - to which the Internet users escape - or to the only ethics - that the Net surfers would express in their collective behavior in a shared morality thanks to an education!footnote-1576 we have trouble finding the origin!footnote-1551. If we recognize the current difficulty of a new configuration of the world, digitized by a digital world in which human beings do not stand, one of the possible solutions can come from Compliance Law. Indeed, rather than complaining about the fact that this digital space is held by private and foreign operators, why not build on their power and internalize this new branch of Law!footnote-1552, the burden to hold this space ? To hold it in a substantial way, that is to say to control in Ex Ante what is it said there, what is it  done there? It is then to the "crucial digital operators" to constitute this vertebral column which compels from inside to have a good behavior in Ex Ante so that we do not sink in this tide of sadness acting massively against each others (A).

In this space the hold, these operators, organized by Law and supervised by Public Authorities, can admit  only beings and entities presenting themselves as "persons" in the legal sense of the term, that is to say acting with known and constant identity. By this sole fact, as they are legally persons and not ghosts, they will stand better. In a more precise way, the person defining as a "subject of right", holders of rights, these digital operators, by the power of constraint that Law must grant them, must have the obligation to let only identified and concretely legal persons obliged to respect others, through the effectiveness of the rights of the latter (B). For example intellectual property rights.

A. COMPLIANCE LAW, FOR INTERNALIZING IN CRUCIAL DIGITAL OPERATORS THE RESPONSABILITY OF MAINTAINING THE DIGITAL SPACE SUBSTANTIALLY

In a classic view of Competition Law, the risk taken in consideration is the dominance of digital operators which hold a world they have built: platforms and search engines. Not that we must not be vigilant because their common economic model is the exploitation of data, which is a concern for both competition and individual freedoms. But Competition Law itself does not reproach an operator for being powerful!footnote-1553 and it is advisable on the contrary to take advantage of this power to restore order in this new space (1) by obliging crucial digital operators to control what happens there (2). In fact, digital can not be reduced to being a neutral market for digital services and its content must be contained.  "Regulation" (in Ex Ante and permanent supervision and internalization by Compliance), and not only Competition, is in this very tautology.

1. Using the power of crucial digital operators to restore order in the digital space 

The relationship between Law and Force is such an old theme ... Law is often defined as the right force that stops the unjust force!footnote-1555. But can not the Law take advantage of the strength of the object on which it bears, rather than being neutral or fighting against? The digital world was built by the intelligence and daring of a few entrepreneurs, served by the circumstances and using technologies, working together that formed the breeding ground of this new world that is digital. Building a world, not just discovering it, is an unprecedented event and we must recognize the merit of entrepreneurs who have cast off to a world that did not exist before them.

The strength that these entrepreneurs have had in constructing a world that did not exist, the strength they derive from it by nature, since they are its architects, does not deserve to be opposed to it. But it does not justify either that they constitute them in "masters"!footnote-1556. Digital companies hold the digital space and legally enter the category of "crucial digital companies"!footnote-1554. They must be noted in their power and be seen to be attributing a special role in Ex Ante!footnote-1557. 

Since digital operators have built and hold a new space, which has in turn transformed the so-called "real world", it is up to them to maintain order, that is to say, to make sure that rules of Law and civility be active there so that sort of speeches would not be held there, that behaviors would not be admitted.

Because they must not be the masters of this world, because they would then be our masters, which they are not legitimate to be, these rules of behavior must be set by the Politics, it ie the Legislator or the Courts or the Public Authorities of Regulation and Supervision. But because they are crucial digital operators, that they hold the places where everything is exchanged, that they constitute the networks where everybody is, the engines by which one accesses everything, it is up to them to put implement these rules of behavior.

The Politics and the Public Authorities must therefore not counter their private power but use it by internalizing in these operators the rules of behavior that Law has fixed, reminding these companies that they are not the new "Constituents" of a global world since the world would be virtual!footnote-1558. Those public authorities in which the idea of ​​State remains must require these companies to use their forces to make effective the rules whose realization is beyond the reach ofSstates, since the means are more limited, de facto (money , information) and de jure (territoriality).

2. Require crucial digital operators to substantially controle what happens in the digital space, which is not simply a neutral services market

For example, Laws are forcing crucial digital operators, such as platforms or social networks, to remove false information. For example, the French Act of 22 December 2018 relative à la lutte contre la manipulation de l'information (relating to the fight against the manipulation of information) and the forthcoming Act against hate content that oblige these operators to intervene in Ex Ante against these hateful or false content.

These texts characterized by very specific goals (in the first Act of 22 December 2018, the dissemination of false information is only referred to during the elecoral periods) are inspired by a more general idea: to obtain the respect of human beings, endangered by a new world where one can say anything (to pass for true what is false) and to attack anyone, without any possible reaction other than in return the increase of aggression. However, as René Girard demonstrated!footnote-1559, it is for stopping the escalation of violence, this blood feud now observable on the net, that Law and institutions were established. This is why the French author Carbonnier reminds that the person is "sacred"!footnote-1560: what we do not attack, while on the contrary we see how human beings are trampled into space digital at every moment.

To stop this, Law, in particular European Union Law, does not conceive of the European digital space as constituting a simple "digital single market", which sometimes seems its only plan, but as a comprehensive world, involving substantial and central protection of the human being. For the moment, Europe, still too divided between the European Union and Europe of human rights, anticipates only a digital services market, whereas it is a new world in which human beings live that it is necessary to organize for them.

As it is sovereign, Law must order the crucial digital operators to protect these human beings. European Union Law has already done so with brilliance and success by obliging them to respect them when storing, handling and disposing of personal data, first and foremost by the case law of the Court of Justice condemning Google Spain. in 2014 then Facebook in 2015, then by the 2016 Regulation (GDPR).

It is necessary to go further, Law fixing these goals, the operators concretizing them.

B. PERSONS WITH KNOWN, CONSTANT AND CONTROLLED IDENTITY, RESPECTING OTHERS THROUGH THEIR RIGHTS 

In order for human beings to stop being victims of  behaviors that take themselves as if they were only objects through the use of their "data"!footnote-1561 or by behaviors that deny their dignity inseparable from their legal quality of person, it must be considered that each is certainly a potential victim but also a potential aggressor. It is in this quality that the crucial digital operators should be asked to seize the interveners, because if there is no more aggressor, because everyone would be forced to "have a good behavior", then he there would be no more victims.

This is why it is essential to obtain through the power of these operators that everyone in the digital world "behave well", that is to say, respects others. For this, operators must be required to demand that everyone be compelled to act openly, that is to say with known, constant and controlled identity (1). Then it is necessary to internalize in the crucial digital operators an obligation that is external to their intrinsic goal of entrepreneur but that is due to their crucial position inherent in this digital world: to ensure that some respect the rights of others, the only effective way to a person to respect others: through the implementation of the rights of others (2).

1. Forcing the crucial digital operators to force everyone to act with a face-lift: the "politics of real identity"

To compel people to "stand", Law must give the order to put an end to the possibility of creating false profiles. It is not permissible for the mechanism of the "fictional company" to be sanctioned in Corporate Law and to admit the creation of false profiles!footnote-1562.

Moreover, if the legal notion of the "person" refers to the mask (persona in Latin), it is to better attach to the human being, who constantly changes, an identity which as for it remains and always allows others to addressing it!footnote-1563: Operators must be required to control the identity of those who act through them. What is often called "real identity politics"!footnote-1564  must be imposed on all operators by public authorities. All the better if it converges with initiatives of these, but these movements are neither required nor the most solid because these companies do not have to fix Law of the common digital space.

Obliged to act under their identity, having to bear the consequences of their speech, human beings maintain the violence or the falsity of the words or behaviors, but most of the time, because the necessity to assume it is a way to answer Ex Ante in the eyes of all, this leads to a moderation. The mask of hate is not graceful, it is more difficult to wear it in one's own name!footnote-1631. 

In a more general perspective, the person who shows their "true face" stands by this sole fact. For example in the coherence between their past, present and future behavior. The geniuses of their three Christmas come constantly to ask them to account, in this digital space that keeps everything in memory, and this can be enough, by the maintenance of memories, to give them support. It is therefore essential to forbid anonymity, with specific exceptions (for example for authors).

2. Forcing crucial digital operators to force everyone to respect the rights of others: the effectiveness of the person as a "subject of Law"

If we want to go further in the requirement that everyone "have a good behavior", that is to say, respect others as a person!footnote-1565, we must ensure that everyone is fully considered as a person, that is to say a "subject of Law". Ambition then grows, because the measure of respect for one's personality goes beyond the hard core of one's dignity, which demands not to be scorned, to go towards the effectiveness of one's rights.

However, the subjective rights are constantly unknown in the digital world. Probably because this world was built on technology and that Law is little considered, according to this new adage that would pose that the coding of the algorithm would be the only "founding law", the legal prerogatives of human beings, the subjective rights of people, being not even conceived.

No doubt the Americans were quite surprised to see Europe bite to the fore to remind people that they can not use the privacy of others to sell better to others, as data trading seems a natural thing across the Atlantic. . It is true that the knowledge of the tastes of a person has an economic value but all that is of value, since susceptible of supply and demand, is not legally available: the person is not legally at the disposal to others, it has their fundamental right not to be. This is the definition of the subject of law, underlying all the law of personal data. More generally, Compliance Law has internalized in companies the obligation to concretize this subjective right to remain master of oneself, against the natural forces, here the forces in the digital world!footnote-1566. 

If we consider that the Law of Personal Data is only one example of the more general obligation of the crucial digital operators, they must be obliged to participate actively in the fight against systematic ignorance of rights not only in the Internet but through the Internet. This is especially true for intellectual property rights.

European Union has adopted a directive on the rights of authors (which is not the same concept as copyright)!footnote-1567. Beyond this, the operators must do more than withdraw when they are asked for illegal content, because pirated works are immediately duplicated, which destroys the effectiveness of the rights of creators and destroys the cultural industry. The technology would allow the digital operators to make a police more effective. Law must give them the legitimate power to do this police because it must impose on them the duty to give effectiveness to authors's rights and intellectual properties, by associating recourse for those whose contents will thus have been dereferencing in Ex Ante !footnote-1568. 

C. THE PROJECT OF A DIGITAL WORLD AS A WORLD CIVILISED BY COMPLIANCE LAW 

If we manage to do this, then this digital world that is already there, that has transformed the whole world in which we live because the digital world has digitized the world!footnote-1569, which is deployed for the benefit of the freedom, but which, if it does not put it in equilibrium with another principle, leads to a deterioration of the situation of human beings, could lead those who act to "have a good behavior".

To have a good behavior by not spreading everything they think, by not attacking others, by staying consistent over time in their behavior, their words and their own person.

Law must force people to do this because the coexistence of people and the respect they must have for each other, in the rights of each other, is one of the reasons why Law itself exists.

It is the role of Law to impose this imperative, which is a political one, since this civility alone will make the digital world become a civilized world, which for the moment is not.

This imperative must be internalized as a goal to achieve in the economic operators which created the digital world and which hold it: it is the object of Compliance Law!footnote-1578.  The person and the respect of their rights which is due to them, are its heart!footnote-1579. 

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