Notice and take down procedure validated in French law

By EDRi · June 16, 2004

On 13 June 2004 the French Constitutional Council published a decision on the Digital economy law (Loi pour la confiance dans l’economie numerique or LEN). Among the 3 provisions challenged by the parliamentary opposition, only one has been found unconstitutional and one was slightly modified. None of the 7 further provisions challenged by EDRI-member IRIS and the French Human Rights League (LDH), has even been examined, while some of them are indeed limiting the constitutional freedom of communication, to the benefit of private interests (see EDRI-gram Number 2.11, 2 June 2004).

The provision found unconstitutional, which has thus been suppressed from the text of the law, is the one introducing different time bars for online and off-line content when exercising the right of reply or filing judicial complaints against offences identified in the press law (see EDRI-gram Number 2.9, 5 May 2004). After the Council decision, the time bar is now the same in both cases.

The Council also objected against the interpretation of a provision dealing with the liability of hosting providers. The Council has restricted the interpretation of this provision to cases where the content is manifestly illegal. Under French jurisprudence, ‘manifestly illegal’ only applies to content of the type pedophile imagery and holocaust and war crimes denial. While this restriction is welcome, the Council decision has however validated the introduction of a notice and take down procedure in the French legislation, legitimising thus a system of ‘privatised justice’ which has constantly been denounced by IRIS and LDH, as well as many other French groups, since the beginning of the law discussion process.

In a common press release published on 15 June 2004, IRIS and LDH denounce the support from the Constitutional council to the current French right-wing government, by legitimising once more another serious step back in the rule of law, after, inter alia, the Internal Safety Law and the ‘Perben II Law’. Both organisations also take due note of the fact that the day before the decision became public, the French ISP association signed a voluntary code of conduct, under the aegis of French government. The providers agree to open a point of contact where users can report racist and child-pornographic content. When notified of illegal information, the providers will “act expeditiously to remove or to disable access to this information, according to legislation in force.” It remains unclear how and by whom it will be decided if reported content is illegal.

IRIS and LDH call all human rights and civil liberties organisations to exercise their role of watchdog, while at the same time maintaining pressure on the current opposition to have the LEN re-examined as soon as political changeover occurs in France.

French Constitutional council dossier on the LEN

IRIS and LDH joint press release (15.06.2004)

French E-commerce law tested in constitutional court (02.06.2004)

Final French vote about digital economy law (05.05.2004)

Code of conduct French ISP association (14.06.2004)

(Contribution by Meryem Marzouki, IRIS)