(RSF/IFEX) – RSF has appealed to the French Senate to amend the digital economy bill passed by the National Assembly on second reading on 8 January 2004. The organisation wishes to ensure that commercial companies that host websites do not have to act as censors and decide if online content is legal, and that there […]
(RSF/IFEX) – RSF has appealed to the French Senate to amend the digital economy bill passed by the National Assembly on second reading on 8 January 2004. The organisation wishes to ensure that commercial companies that host websites do not have to act as censors and decide if online content is legal, and that there is no threat to the confidentiality of e-mail exchanges. The bill was presented by Industry Minister Nicole Fontaine.
“The digital economy bill is an incoherent hodgepodge that even Internet professionals are hard put to understand,” RSF Secretary-General Robert Ménard said. “The jumble of articles approved by National Assembly members 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, which concerns the responsibilities of Internet service providers (ISPs), is particularly worrying to RSF. The article says ISPs are responsible for the content of webpages on the sites they host. Hosts would become liable under common law if they did not “act promptly” to block content “after becoming aware of their unlawful nature”.
How are service providers supposed to decide whether or not content is lawful, RSF asked. 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 be deemed unlawful for fear of being found criminally liable, with penalties of up to one year in prison and a fine of 75,000 euros (approx. US$96,000) for ISP managers.
The bill’s advocates argue that website hosts would be protected by a clause in the bill making improper accusations of illegality punishable by one year in prison and a fine of 15,000 euros (approx. US$19,000). Nonetheless, legal decisions would still have to be taken by commercial companies, and RSF believes 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. RSF recognises the need for legislation on e-mail, above all to combat spam. However, the Ollier amendment, which jettisons all mention of “private correspondence” outright, is a radical solution that is likely to threaten e-mail confidentiality. In an effort to combat “pirate” file exchanges of music and films, the bill eliminates a key safeguard against e-mail surveillance. Socialist parliamentarian Patrick Bloche noted, “a Pandora’s box has been opened . . . [and] I’m not sure if it’s a victory for the fight against piracy.”
RSF believes legislators also need to examine another amendment to the bill that the National Assembly introduced. The right to use the Internet, which until now was considered part of the right to audio-visual communications (under the Freedom of Communication Law of 30 September 1986 and the Audio-visual Communications 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.”
RSF believes this to be is a good idea in principle. However, case law in this field is still very limited, so making the Internet an autonomous right could have complex legal consequences, which even specialists are hard put to predict. The Internet would no longer fall under the broadcasting law and would therefore be set free from any control by the High Council for Broadcasting (Conseil supérieur de l’audiovisuel, 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. It is unclear 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 will have to be submitted for the Constitutional Council’s approval. In 2000, the council previously rejected a law proposed by the Socialist government at the time, which envisaged an identical model of responsibility for website hosts. RSF hopes the council will also oppose the industry minister’s bill should the minister herself not amend it.
