(RSF/IFEX) – On 15 November 2004, the central Paris court handed down the first explicit decision on the Law on Confidence in the Digital Economy (LEN), which judges an Internet service provider’s (ISP) responsibility for content, and ruled in favour of the ISP. The case concerning the 1915 Armenian genocide and pitting the Armenian National […]
(RSF/IFEX) – On 15 November 2004, the central Paris court handed down the first explicit decision on the Law on Confidence in the Digital Economy (LEN), which judges an Internet service provider’s (ISP) responsibility for content, and ruled in favour of the ISP.
The case concerning the 1915 Armenian genocide and pitting the Armenian National Committee (CDCA) against the Turkish consul in France and Wanadoo, a French ISP, demonstrated the difficulty of applying the concept of “manifestly illegal” content, as introduced by the LEN.
The CDCA had filed a complaint against the Turkish Consul in Paris, Aydin Sezgin, and against Wanadoo in connection with articles contesting the Armenian genocide on the Turkish consulate’s website (http://perso.wanadoo.fr/tcparbsk/). The court explicitly referred to the LEN in assessing Wanadoo’s responsibility “in light of the interpretation contained in the decision of the Constitutional Council on 10 June 2004”.
RSF has constantly campaigned against the responsibility of ISPs as established by LEN. Since the law’s adoption, the organisation has urged judges to demonstrate extreme vigilance in its interpretation. “The law imposes on [ISPs] the obligation to decide on the legality of content to which they provide access and effectively to take over the work of the courts. The Constitutional Court that ruled on the law had limited the responsibility of providers by introducing the concept of ‘manifestly illegal’ content. But the CDCA case against Wanadoo demonstrates that the concept is too vague to effectively protect freedom of expression. Deciding on the legality of content turns out to be an arduous business, which cannot be accepted by [ISPs], particularly smaller ones,” RSF said.
The entire case rested on the following question: “Does contesting the Armenian genocide constitute a manifestly illegal act? In reaching a decision, the court examined a variety of national and international legal texts produced by the Armenian association. These included the 1881 Press Law; the statutes of the International Military Court annexed to the London Agreement of 8 August 1945; the French law of 29 January 2001 recognising the Armenian genocide; the International Convention for the Prevention and Repression of Genocide adopted by the United Nations on 9 December 1948, and an 18 June 1987 resolution of the European Parliament. The judges went so far as to check the minutes of Parliamentary sessions.
The court finally decided that nothing in the texts confirmed that contesting the Armenian genocide was manifestly illegal. The decision exonerated the ISP from any responsibility in the case.
The court had to examine three international texts and two French laws to reach a decision. What would have been the judges’ decision if one of the international conventions stipulated that Armenian genocide was not contestable? Would the court have then decided that providers were responsible? RSF believes the question to be far from rhetorical. The judgment seems to suggest that the ISP should, if faced with this type of content, check its legality in the light of national laws and also international legal texts. Certainly ignorance of the law is no excuse, but is it reasonable to believe that ISPs, particularly smaller ones, would be able to handle such a task?
According to Lionel Thoumyre, who works for the French consultative group Internet Rights Forum, the interpretation of the “manifestly illegal” concept should only be applied in relation to the degree of legal competence that one can expect from an ISP. With this kind of interpretation, it would be easier to prove that the ISP, which could not be considered an expert in international law, was not responsible in this case.
It seems, however, that the ruling, even if favourable to the ISP, demonstrates more fundamentally that the legal responsibility on ISPs is too heavy, despite the protection of the phrase “manifestly illegal”. RSF believes that in seeking to put companies in the place of judicial authorities, the legislator has opened a Pandora’s Box, the consequences of which will gradually make themselves felt. The risk of increased Internet censorship by ISPs remains on the agenda.
