France17 June 2004
LEN : Freedom of expression victory in new law
Reporters Without Borders hailed the Constitutional Council’s ruling on the Law on confidence in the digital economy (LEN) as a victory for freedom of expression. The Council published its decisions on 13 June 2004, striking out a highly contested point on the legal limitation period on the Internet.
While welcoming the stance taken by the Council, the international press freedom organisation pointed out that some problems remain, in particular on the responsibilities of Internet Service Providers.
"This decision confirms what we have been saying for months, that LEN did not respect free expression. We will nevertheless need to be vigilant on how judges interpret the new law. We will closely watch the first rulings on the subject, because they will allow service providers to know what kind of content can be censored without prior intervention by the courts," said the organisation.
Legal limitation period on the Net: restoration of press rights
The council rejected an amendment introduced by French industry minister Patrick Devedjian, allowing legal action against online content three months after the offending file had been removed. A site editor could thus be accused of defamation in connection with articles published years earlier. The council took the view that the measure ran contrary to the Constitution because it created a legal imbalance between the press and electronic publications. It therefore decided that the limitation period should remain the same as for newspapers - three months from the date the content was first posted. The council members however specified that "the principle of equality would not prevent different rules being applied in different situations". In other words, they accepted that the Internet comes under a different legal framework from the press, as long as it remains balanced.
Responsibilities of service providers: jurisprudence will decide
The constitutional guarantors reaffirmed the principle of legal responsibility of service providers in cases where the illegal nature of content has been drawn to their attention. Even though this measure effectively creates private law on the Net, they considered that it complied with the European directive. The Constitutional Council however toned down the law as passed by parliament, saying that service providers can only be held responsible if a judge has ruled the content illegal or if the web page is "manifestly illegal". This last point picks up a recommendation from the French consultative body, Internet Rights Forum, providing judges with limits to this law of responsibility. This means that French jurisprudence only recognises as "manifestly illegal" content involving revisionist statements, child pornography, justification of war crimes and so on. It is therefore unlikely that service providers would be convicted for posting defamatory articles, for example. To sum up, the nine Council members said they were obliged to accept the creation of private law on the Net because they considered the principle existed in the European directive.
Reporters Without Borders calls on all Internet-users to be vigilant to any abuses caused by the new responsibilities put on service providers by LEN. There is still a risk that service providers will abusively censor the Internet despite the advice of the Constitutional Council. The organisation also recommends service providers to consult press freedom organisations before setting up procedures to catch controversial content.
Finally, Reporters Without Borders urges civil society to be alert to European Union’s examination of directives affecting the Internet. Even more so since, as the Constitutional Council has just ruled, European law takes precedence in most cases over the French Constitution. LEN cannot therefore really be amended, particularly on the issue of private law, until after the re-examination by the EU, in summer 2005, of the June 2000 directive on electronic business.