French draft decree regarding the right to reply on the Internet

(Dieser Artikel ist auch in deutscher Sprache verfügbar)

The French Ministry of Culture has forwarded to the European
Commission a draft decree for the application of the right to reply
legislation introduced by art. 6 IV of the law on Digital Economy of
21 June 2004 (‘Loi pour la confiance dans l’économie numérique’ or
LCEN) that implemented the EU e-commerce directive.

Basically, art. 6.IV of LCEN foresees that any natural or legal
person directly or indirectly named in an online communication service
is granted the right to reply on the same service. With this very
extended scope, the French legislator has assimilated the online
services to the written press regime, a decision which was opposed by
French EDRI-member IRIS during the Parliamentary discussion on the
LCEN. IRIS proposed to limit the right to reply to circumstances when
inaccurate information is provided on the named person, or when his/her
reputation or honour has been touched.

If such limitations had been considered, the current French law would
have been more in line with European developments on the right to
reply. A Council of Europe Recommendation adopted on 15 December 2004, sets
the scope of the right to reply to “offering a possibility
to react to any information in the media presenting inaccurate facts
about (the named person) and which affect his/her personal rights”.
At the EU level, a recommendation including the right of reply in
relation to the competitiveness of the European audiovisual and
online information services industry was adopted on 12 December 2006
by the European Parliament. The document proposed by the Council
considers again that: “It is appropriate for the right of reply or
equivalent remedies to apply to on-line media, and to take into
account the specific features of the medium and service concerned.”
The new Audiovisual Media Services Directive of 2006 also included
the right of reply in the new media, the text referring only to the
TV-like services on the web.

The French draft decree specifies that this right to reply is granted
provided the respective site does not offer the possibility of a
direct reply such as forums, chat rooms etc. The law does not cover
the right to reply for the general interest or for a third party
(except for cases where there is a mandate in this sense).

The request for the right to reply can be addressed in writing
preferably by registered letter with acknowledgement to the manager
of the respective site, within 3 months from the publication of the
article that makes the subject of the request. The 3-months period is
necessary for the public to acknowledge the article in question. The
webmaster is supposed to place the respective reply on the site
within 3 days from the receipt of the request and the reply must be
available “under similar conditions as those of the message under
discussion and presented as a result of exercising the right to
reply”. The reply must be accessible at the same place on the site as
the initial article and be on-line for as long at the former is.

The application decree includes two debatable provisions. One of them
states that the person requesting the right to reply can give this
right up in case the webmaster accepts to modify or eliminate the
article in cause. This could give the possibility to apply pressure
on the websites.

Another questionable provision refers to the format of the reply
message. The right to reply is said to have a maximum length that
should be equal to the message under discussion not exceeding 200
lines. This can lead to various interpretations on the Internet as
the lengths of lines may differ according to the characters or font
used.

The EU Member States have to give their opinion on this application
decree by mid-June after which the French Minister of Culture will
sign the decree or modify it accordingly. In any case, this would
happen after the French presidential and legislative elections.

Draft Decree on the right to reply applicable to online public communication
services for the application of item IV of article 6 of law no. 2004-575 of
21 June 2004 (only in French)
http://www.tntlex.com/public/projet_decret_droit_reponse.pdf

Law n 2004-575 of 21 June 2004 for trust in digital economy (only in
French, 22.06.2004)
http://www.legifrance.gouv.fr/WAspad/UnTexteDeJorf?numjo=ECOX0200175L

IRIS – Analysis of Meryem Marzouki – the Law on electronic economy (LEN)
(only in French, 19.02.2003)
http://www.iris.sgdg.org/actions/len/point-len0203.html#3.3

Council of Europe – Rec(2004)161 of the Committee of Ministers to
member states on the right of reply in the new media environment
(15.12.04)
http://www.coe.int/T/E/Com/press/News/2004/rec(2004)16.asp

Right to Reply: how to exercise it on the Net (only in French, 20.03.07)
http://www.journaldunet.com/juridique/juridique060620.shtml

Internet offers itself a right to reply (only in French, 20.03.07)
http://www.ecrans.fr/spip.php?article997&var_recherche=droit%20de%20reponse

EDRI-gram: New EU recommendation includes the right of reply in the online
media (20.12.2006)
http://www.edri.org/edrigram/number4.24/right-of-reply