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France9 January 2004

Digital economy bill would turn website hosts into censors and end e-mail privacy

Reporters Without Borders today appealed to the senate to amend the digital economy bill passed on second reading by the national assembly yesterday, so that the commercial companies that host websites do not have to act as Internet censors and decide if online content is legal, and so that there is no threat to the confidentiality of e-mail. The bill was presented by industry minister Nicole Fontaine.

"The digital economy bill is an incoherent hodgepodge which even Internet professionals are hard put to understand," Reporters Without Borders secretary-general Robert Ménard said. "The jumble of articles approved by the national assembly representatives include measures that are very worrying for online free expression," Ménard warned.

"We support regulating the Internet, but we think this bill would violate freedoms and obstruct the Internet’s development," he added.

Article 2 of the bill, about the responsibilities of Internet technical service providers, is particularly worrying. It says service providers are responsible the content of the webpages on the sites they host. Hosts would become liable under common law of they did not "act promptly" to block content "after becoming aware of their unlawful nature."

But how are service providers supposed to decide whether or not content is lawful? Only judges are qualified to do this in France. Internet users would be able to demand the immediate withdrawal of content they consider unlawful. Website hosts - who oppose the bill - would be forced to censor any content likely to deemed unlawful for fear of being found criminally liable, with penalties of up to a year in prison and a fine of 75,000 euros for the manager of a service provider.

The bill’s advocates argue that website hosts would be protected by a clause in the bill making improper accusations of illegality punishable by a year in prison and a fine of 15,000 euros. Nonetheless, legal decisions would still have to me taken by commercial companies, and they are not qualified to do this.

The elimination of the concept of "private correspondence" in the definition of e-mail also poses a problem. Reporters Without Borders recognises the need for legislation on e-mail, above all to combat spam. But the Ollier amendment, jettisoning all mention of "private correspondence" outright, is a radical solution likely to threaten e-mail confidentiality. In an effort to combat "pirate" file exchanges (of music and film), the bill eliminates a key safeguard against e-mail surveillance. Socialist parliamentarian Patrick Bloche said: "a Pandora’s box has been opened ... [and] I’m not sure if it’s a victory for the fight against piracy."

Jurists also need to look at another amendment which the national assembly made to the bill. The right to use the Internet, until now considered part of the right to radio and TV communication (under the freedom of communication law of 30 September 1986 and the radio and TV communication law of 29 July 1982) would become a distinct, autonomous right. The draft law’s rapporteur, Jean Dionis du Séjour, said this would distinguish "a universe of millions of far-flung content producers from a very capitalistic circle of video and audio professionals."

This is a good idea in principle. But the case law in this field is still very limited, so making the Internet an autonomous right could have complex legal consequences which even the specialists are hard put to predict. The Internet would no longer fall under broadcasting law and would therefore be set free from any control by the High Council for Broadcasting (CSA). This is a positive point. But website hosts would henceforth be tried under common law, which could be a disadvantage in some cases. For example, the period of limitation is different for an offence under the broadcasting law and under common law. Which would apply in the case of online content?

The version of the bill that was adopted by the national assembly must now go back to the senate. Once passed by both chambers, it would have to be submitted for the approval of the constitutional council. In 2000, the council already rejected a law proposed by the socialist government which envisaged an identical model of responsibility for website hosts. Let’s hope the council also opposes the industry minister’s bill if the minister himself does not take the initiative of amending it.

The text of this statement is also available in French and Spanish at www.internet.rsf.org




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