French DNS management must respect constitutional freedoms
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Deutsch: [Französische DNS-Verwaltung muss verfassungsmäßige Freiheiten respektieren | http://www.unwatched.org/node/2276]
In a ruling issued on 6 October 2010, the French Constitutional Council
affirmed the constitutional value of domain names. According to this
decision, which applies to the whole French DNS, a domain name attribution,
renewal, transfer or cancellation process must not only respect intellectual
property rights, but also freedom of expression and freedom of
entrepreneurship.
The ruling was issued in the framework of a new procedure, that allows
questioning the constitutionality of an existing law in the course of legal
proceedings related to the application of the given law. In this case, the
plaintiff was questioning the constitutionality of article L.45 of the
French Posts and Electronic Communication Code, adopted in 2004 as part of
the French law on trust in the digital economy (‘Loi pour la confiance dans
l’économie numérique’ or LCEN). This article provides that the French Domain
Name System (DNS) registries are appointed by the government; that each
French ccTLD is managed by a unique registry; and that the government
ensures that domain names are attributed by these registries “in view of the
general interest, according to non discriminatory rules made publicly
available and ensuring the respect, by the domain name holder, of
intellectual property rights”.
The ruling follows the plaintiff argument that the article in question
was infringing Article 34 of the Constitution which provides, inter alia,
that “law shall lay down the basic principles of (…) systems of ownership,
property rights and civil and commercial obligations”. Therefore, due to the
absence of precise enough safeguards, Article L.45 of the French Posts and
Electronic Communication Code gives the Administration and the designed
registries too much latitude regarding the management of the French DNS. In
particular, the Constitutional Council found that, as currently defined, the
law indeed protects intellectual property rights but neither freedom of
expression nor freedom of entrepreneurship, since the last two may be
restricted by the registry through denial of a domain name registration or
renewal, or through its transfer or cancellation.
AFNIC, the main French registry, manages the .fr as well as .re (Réunion
Island), .pm (Saint-Pierre and Miquelon), .tf (French Southern and Antarctic
Territories), .wf (Wallis and Futuna) and .yt (Mayotte). Other French ccTLDs
are managed by different registries; .mq (Martinique), .gp (Guadeloupe) and
.gf (French Guiana) are delegated to registrars; while.nc (New Caledonia)
and .pf (French Polynesia) are administrated by the respective territories.
The ccTLDs of the two other French territories (Saint Barthelemy and Saint
Martin) have no assigned registries yet, and the corresponding domains (.bl
and .mf) are not yet present in the root zone. All these registries have to
comply with the provision of Article L.45 of the French Posts and Electronic
Communication Code.
As a result of this decision, the law should now be amended by 1 July
2011. The Constitutional Council gave this delay in order to avoid a major
disruption that would otherwise threaten the legal continuity and security
of the French domain name space. After this deadline, any decision from the
government and/or from the registries designed pursuant to current Article
L.45 of the French Posts and Electronic Communication Code would be deemed
illegal.
It must be noted that this ruling only concerns registries designated by the
French government, according to the provisions having been found
unconstitutional. It does not extend to any other ccTLD than that of the
French national territory, nor to any gTLD. Furthermore, the Constitutional
Council decision has no impact on the question of whether the registration
of a domain name implies any property rights over this name or only the
right to use this name for the registration period.
However, and this is the major outcome of this decision, such a ruling may
be seen as a breakthrough from a political point of view for all those who
consider domain names as one of the means of freedom of expression and
communication in the digital environment.
French Constitutional Council decision and related dossier (only in French,
06.10.2010)
http://www.conseil-constitutionnel.fr/conseil-constitutionnel/francais/les-decisions/acces-par-date/decisions-depuis-1959/2010/2010-45-qpc/decision-n-2010-45-qpc-du-06-octobre-2010.49663.html
AFNIC (.fr registry) webiste
(Contribution by Meryem Marzouki, French EDRI-member IRIS)