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Cette illustration d'une question juridique a été publiée dans la Newsletter MAFR - Law, Regulation & Compliance du 21 septembre 2020 sur LinkedIn.
Criminals is a wonderful series, with a British branch, a German branch, a Spanish branch and a French branch.
The second season just cames up.
In this second season, the third part, Danielle, is about a woman who wants to be a "vigilant" in the digital space.
As Jean-Louis Trintignant says, "I love cinema because cinema is reality".
It is so true. It is true for instance for Family Law, it's true on Regulatory & Compliance Law.
THE STORY OF DANIELLE
The movie's topic is the interrogation of Danielle by the British policemen and policewomen, in a room. Danielle is certain of her rights and very proud of what she has done.
Danielle has founded a website called Pesticide. The policewoman asks her if this name is not a problem because Pesticide is a sort of agression. Danielle is very surprised: how could it be, it is on the contrary so smart to join "cide" for something like "homicide" and "pest" to recall the objective of this site to obtain the accountability of people who commit crimes. Very smart, very funny, everyone is free, as she says.
More particularly, Danielle has decided to search and find pedophiles who are in social medias, to entrap them for exposing them. If the police is unable to protect children, its own organization will do it. She is a mother, she understands the necessity to do it, while the police does not.
The principle is efficiency. Because police does nothing, it is rational, it is absolutely required for a person as herself to take care of children through her website Pesticide.
Indeed the result obtained through this site is very effective. For instance, Danielle has obtained a teacher to be fired for having unsavory videos of children on his computer ; and when she discovered it he managed to find another job in a private school, she sent the file to this new school, which fired him.
Danielle thinks two things :
In the discussion with policemen and policewomen, Danielle says she did it because the police does nothing, lets criminals free, lets innocents, as future victims, exposed to these criminals. Thank to Pesticide, they can be tracked in time, denounced, punished by people themselves efficiently.
In fact , Danielle has been under arrest for making an improper communication online.
She thought this was unjustified, because for her to be vigilant is being a "new civilian heroe".
She does not understand why she is in this room, with policemen. When they begin to speak about Andrew Simmons, whom she exposed as a pedophile after posing as a 14-year-old girl and getting to know him on a chat room. She was confident, because her behavior was right and she was waiting for congratulations.
When policemen and policewomen insist to give her a lawyer, explain she needs it, she refuses. Because she is right, she does need a lawyer. When a lawyer arrives, he explains to Danielle she has broken the Law, but she does not understand.
This is the beginning of the story of Danielle....
We can try to learn from the Danielle character, even without knowing the story's end.
THREE LESSONS FROM THE STORY OF DANIELLE
First lesson from the story of Danielle: the tendency to take efficiency as a sole criterion
Policemen and policewomen emphasize the importance of the Rule of Law, the necessity to strongly prove before condemning for instance, to organize due process. They insist on the difference between Law and this sort of manhunt.
Even if this man, the first or the second, or another one is suspected for this crime or for another one, is finally guilty.
But Danielle rejects this conception with one argument: the efficiency.
She says: no question to let "criminals" free, let "criminals" express their opinions ("no freedom for the ennemies of Freedom"), let "criminals" speak. Not only because they are so guilty, for instance these people (this teacher, this new Internet user) but also because it is so efficient to attack them without due process, to give a lot of publicity to their "crimes" (without strong proves).
This is a greatest danger of Regulatory & Compliance Law.
If Regulatory Law, and moreover Compliance Law are only defined as the legal way to make "efficient" the other branch of Law, the tendency will be the fight between "classical" Rule of Law and the "so efficient Compliance Rules". Do you want to bet?
The issue is in the definition of Compliance Law.
If Compliance was only process and enforcement, Rule of Law would be marginalized by the necessity of efficiency. But because Compliance Law is defined by its Monumental Goals, which are the protection of individuals, even through the systems protection, the protection of individuals denies by nature the sole consideration of efficiency. Protection of individuals is not a concession, it is the nature of Compliance Law itself.
Second lesson from the story of Danielle: How to regulate the digital space?
Danielle lives in the Digital space.
As so many people, using new identity, new age, new hair color. As she says: "why not, it is legal".
Yes, it is.
When Legislators or Regulators propose to "regulate" Internet, the opponents argue that it is not possible because it would be a violation of the Freedom principle.
The Freedom principle is a constitutional one, so important to preserve. If the sole efficiency would prevail, as Danielle wants, as some goverments would like, it will be a terrible future.
So, how to prevent behaviors such as Danielle's ?
Regulating Digital Space is the most and difficult current challenge (see Frison-Roche, M.-A., Having a good behavior in the digital space, 2019).
The German and French solution to give a Supervisory power to administrative bodies on crucial digital firms in charge to discipline the Digital space, especially on Hate speeches and infox, could be a perspective.
Third lesson form the story of Danielle: How to make Danielle understand what she has done, what she is doing, what she wants to do in the future?
But the most difficult is that Danielle does not understand at all she did wrong, she wants to continue, she believes to be a "citizen heroe", she believe legal mechanisms are stupid and law enforcers are heartless.
Maybe she will be punished for breaking digital Law (wait and see the end of the Danielle's story ....).
But she will continue to not understand firstly the legal rules applied to the digital space, secondly why her behavior were and will be so reprehensible. Maybe if she will be charged for very grave facts, she will not understand what that means for her, continuing to have small talk.
That shows that the core issue in Regulatory and Compliance Law (maybe in Law, in general) is: how to teach Law?
In Compliance Programs, education and training are put in the center (see Frison-Roche, M.-A., Training: content and container of Compliance Law, 2020)
Maybe we can do the same for Law, more generally.