Jurisprudence shows shortcomings French digital economy law

The French digital economy law (Loi pour la confiance dans l’économie numérique or LEN) recently entered into force. The first 2 court cases already demonstrate noxious effects of the law. As feared by French civil rights organisations like EDRI-member IRIS, the Human Rights League and others, the LEN creates judicial insecurity for French website editors and ISPs and legitimises private justice. Before the LEN, only courts could decide on take-down of websites (See EDRI-gram 2.12).

The first decision occurred in a defamation case. The French insurance company Groupama filed a case against an individual who maintained a web page with allegations of swindling by the company. The web page was accessible through equally defamatory URL names. Groupama was also suing the ISP, Free, as alleged defamation co-author, until Free decided to temporarily block access to the content. Free had received a notice by Groupama following the LEN ISP liability provisions (article 6), and made the commitment to definitely remove the site after a court decision. The court recognised the defamation by the web page editor and decided that the content must be removed as well as the URLs. Since the ISP had complied with the LEN provisions it was not found to be liable.

This decision shows that the Constitutional Council reservations on ISP liability provisions of the LEN are not enough protection against private censorship, contrarily to what the Council claimed and to what was reported by some observers (See EDRI-gram 2.22). The reservations require that the content should be ‘manifestly’ illegal to be taken down by the ISP, and the Council claimed that this obviously doesn’t concern defamation and intellectual property violation cases. From this case it clearly appears that it does.

The second decision is about Wanadoo’s refusal to take-down the website of the Turkish consulate in France, following a request by CDCA, the Armenian National Committee in France. The text of the decision, now made available, shows an interesting reasoning from the ISP and from the court regarding the LEN. While the court found that Wanadoo was right since there is no provision in French, European or International law punishing the Armenian genocide denial (although France passed a law recognising its reality), its interpretation of the LEN contradicts all the claims by the French government and the majority in the Parliament that they provided enough safeguards in the law.

According to the court Wanadoo considered itself notified by CDCA, even though the ‘notification procedure’ provided by the LEN had not been followed. This procedure is a prerequisite to justify that the ISP has the actual knowledge of allegedly illegal or unlawful content it hosts. In addition, the court acknowledged that the ISP had asked another court for advice on the nature of this content. Furthermore, the court said that Wanadoo ‘couldn’t ignore the legislation related to the Armenian genocide, being the host provider of the website of the Turkish consulate’. Although this has no impact in this particular case, this interpretation may well determine the future, since it considers that an ISP has an editorial responsibility on the content hosted, just like in the press and the audio-visual industry.

Although one cannot infer much from just two cases, they form an indication that, most probably, the LEN wont lead to a solid jurisprudence orientation, and consequently wont be able to avoid judicial insecurity and privatised censorship. More importantly, there is no public information on all the private decisions made by providers to block access to or entirely remove web-sites.

Court decision in the Groupama case (in French, 09.07.04)
http://www.legalis.net/jurisprudence-decision.php3?id_article=1233

Court decision in the CDCA case (in French, 15.11.04)
http://www.foruminternet.org/telechargement/documents/tgi-par20041115.pdf

EDRI-gram 2.12, Notice and take down procedure validated in French law (16.06.04)
http://www.edri.org/edrigram/number212/len

EDRI-gram 2.22, No take-down website Turkish consulate (17.11.04)
http://www.edri.org/edrigram/number2.22/takedown

(Contribution by Meryem Marzouki, EDRI-member IRIS)