Does digital anonymity protect offenders more than victims?

In our increasingly digital environment, access to identifying data is a major issue, and the French legal framework reveals an imbalance between protecting anonymity and ensuring the right to effective legal recourse.

The paradox of Article 145 of the Code of Civil Procedure 📋

Although this article allows investigative measures to be ordered before any legal action, Article L. 34-1 of the Postal and Electronic Communications Code (CPCE) imposes a real barrier: no connection data may be disclosed in civil matters. Thus, a company whose identity is stolen on social media can never obtain the offender’s IP address through civil proceedings—even with clear evidence of the harm suffered.

Criminal qualification: a sine qua non condition ⚡

Access to technical data is only permitted for “serious” criminal offenses—an inherently subjective standard.
Take the case of the mayor impersonated on Facebook: the Paris Court of Appeal (September 10, 2024) denied disclosure of IP addresses, ruling the offense was not serious enough, despite the clear reputational damage.
Conversely, in the Telegram case (Paris Judicial Court, November 12, 2024), involving a €10 million blackmail attempt, the judge ordered full data disclosure without explicitly assessing the seriousness.

The limits of anonymization and their practical impact 🔍

Identification hinges on varying levels of technical complexity: a CEO using their real name to disparage a competitor (immediate traceability); an employee creating a pseudonym linked to real contact details to criticize their employer (platform cooperation required); an individual using fake info to harass (only an IP address enables cross-checking with the ISP); or an offender using a VPN and TOR network (nearly impossible to identify without real-time surveillance). The IP address is often the only technical means available—yet it remains out of reach in civil cases.

A fragmented legal framework with heavy practical consequences ⚖️

The problematic overlap between the Law for Confidence in the Digital Economy (LCEN), the CPCE, and the 2021 decree creates conflicting interpretations exploited by platforms. For instance, in the Meta case, the company argued it did not hold certain data by relying on Article 8 of the 2021 decree, thereby challenging its data retention obligations clearly set by the LCEN. This evasive strategy dangerously weakens legal recourse mechanisms. The fundamental right to effective remedy is therefore substantially undermined by this fragmented regulatory framework.

The issues at stake go beyond mere legal technicality and raise fundamental questions about the balance between digital anonymity and access to justice in our digitalized society.