France implements Internet censorship without judicial oversight

The recent terrorist attacks in Europe have led to many statements implying the necessity of limiting citizens’ fundamental rights to ensure public safety. At the European level we are faced with the alarming prospect of air passenger data (Passenger Name Records, PNR) collection and long-term storage, while in France the legislative mills are turning even faster.

Last week, the French government enacted a decree that enables the de-listing of websites from search engines without any judicial oversight. The decree targets websites that distribute child abuse content as well as sites that incite or endorse terrorism. This comes only a month after another decree that enabled the administrative blocking of websites.

These two decrees implement the anti-terrorism act of 2014 and the LOPPSI act of 2011 and allow for de-listing and blocking of online content using a solely administrative procedure. The decree on de-listing states that the French Central Office on the Fight against Crime related to Information and Communication Technology (OCLCTIC), a law enforcement institution, will transmit requests to search engine operators, who then have 48 hours to comply. The OCLCTIC has the obligation to re-evaluate de-listed websites every trimester and, if the incriminating content has been removed, transmits a request for re-listing to the search engines. The decree on website blocking works analogously.

The National Commission on Informatics and Liberty (CNIL) is supervises the procedure. The OCLCTIC must notify CNIL of every request for de-listing (and blocking), and, if the CNIL does not support the request, it can recommend that the OCLCTIC not go through with it. The CNIL also has the power to refer requests to the administrative court if it is unhappy with a decision taken by OCLCTIC. Aside from the fact that CNIL is a purely administrative – and not judicial – institution, it is also cynical that an institution that was founded to implement legislation of importance to the respect of citizens’ fundamental rights is now set to become the body that oversees the restriction of citizens’ right to freedom of expression. And that right is indeed gravely threatened by the new decrees.

The decrees allow for the de-listing and blocking not only of websites that incite to terrorism but also of those that “endorse” terrorism (“apologie du terrorisme”). “Endorsement” encompasses all communications that present terrorist acts or perpetrators in a favourable light or which seek to justify such acts. Transparency International criticised the term, arguing that it is often misused to implement measures that restrict fundamental liberties The lack of a clear definition led to the prosecution of over 70 people in France following the recent Charlie Hebdo attacks. One of them, a French teenager, was arrested because he published a questionable drawing with an ironic caption on Facebook.

In the case of website blocking, users trying to access these sites are redirected to a government-sponsored page informing them that content is being blocked. When de-listing, however, the requirement for search engine operators to treat confidentially the requests by OCLCTIC means that it is very difficult to know which websites are affected. There is therefore absolutely no possibility of judicial or public oversight.

In conclusion, it is now possible to censor the internet in France using a procedure that completely ignores the separation of powers, using terms that do not have clearly defined meanings, and with consequences that cannot be scrutinised by a judicial authority or the public.

However, there is movement to challenge these decrees on grounds of their blatant disregard of the rule of law and the constitutionally protected right to freedom of expression. Both the Association of Community-based Internet Services (ASIC) and La Quadrature du Net, a French organisation defending digital rights, have stated their intention to appeal to the Council of State in order to obtain an annulment of these decrees.

La Quadrature du Net calls for the annulment of the decree for blocking without judicial oversight (only in French, 09.02.15)
http://www.nextinpact.com/news/93007-la-quadrature-net-reclame-l-annulation-decret-sur-blocage-sans-juge.htm

Endorsing terrorism: A teenager prosecuted because of a drawing in Facebook (only in French, 17.01.15) http://www.numerama.com/magazine/31910-apologie-du-terrorisme-un-ado-poursuivi-a-cause-d-un-dessin-sur-facebook.html

“Endorsing terrorism”: Amnesty warns France against errors (only in French, 18.01.15) http://www.lexpress.fr/actualite/societe/apologie-du-terrorisme-amnesty-met-en-garde-la-france-contre-les-derapages_1641963.html

Terrorist and child pornography sites can now be delisted from Google (only in French, 05.03.15) http://www.lemonde.fr/pixels/article/2015/03/05/les-sites-terroristes-et-pedopornographiques-peuvent-desormais-etre-supprimes-de-google_4587531_4408996.html?utm_source=dlvr.it&utm_medium=twitter

Decree on the delisting of websites (only in French, 05.03.15)
http://legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT000030313562&dateTexte=&categorieLien=id

Decree on the blocking of websites (only in French, 06.02.15)
http://www.legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT000030195477&dateTexte=&categorieLien=id

(Contribution by Julian Hauser, EDRi intern)