French draft law obliges providers to monitor content

By EDRi · January 15, 2004

On 8 January 2004 the second reading by the French National Assembly of the draft law on Digital Economy (Loi sur la confiance dans l’economie numerique or LEN) stirred up public controversy. The law aims at transposing the E-Commerce Directive (2000/31/EC) and part of the Directive on Privacy and Electronic Communications (2002/58/EC).

The National Assembly not only confirmed its willingness to allow for private justice in France with the notice and take down procedure, but it also adopted a general obligation on hosting providers to monitor the content of their customers, a measure explicitly forbidden by the E-Commerce Directive. In addition, access and hosting providers would have the obligation to filter some contents upon judicial request, a measure which obviously applies to content hosted on foreign websites. Another amendment from the right-wing UDF party obliges internet providers to warn against possible infringements of copyrights in all their advertisements with the mandatory line: ‘piracy harms artistic creation’.

Moreover, the National Assembly adopted a new definition of e-mail, which is no longer qualified as “private correspondence”. While this incredible provision could be seen as the French effort to commemorate the 20th anniversary of 1984, it is simply the result of a deal made by the French government and the right-wing majority with the audio-visual industry. With the new provisions they want to fight the exchange of music files and P2P activities.

Civil liberties organisations, trade-unions, and associations of Internet users have opposed the project since the beginning of the transposition process in February 2003. They are all against what they call “privatisation of justice”, which would be the result of the introduction of a notice and take down procedure in French legislation. Currently, hosting providers can only be held liable for illegal content they host if they don’t comply with a judicial injunction to remove the content.

Many actions have already been undertaken by LEN opponents: EDRI-member IRIS has launched a petition against this provision in the draft law, together with the French Human Rights League, the G10-solidaires association of trade-unions, and two non commercial providers which has recently faced lawsuits (see EDRI-gram issue 23). The petition has been signed by more than 8.000 individuals and 170 organisations. Other actions have been undertaken by Odebi, an association of Internet users, and by Reporters without Borders (RSF).

After the second reading, the campaign of civil liberties associations was joined by the French ISP association (AFA). In a press conference held on 13 January under the header “LEN: 10 millions of presumed guilty”, they announced their decision to simply stop hosting the whole set of services (chats, web fora, personal web pages, …), if the draft law is not modified. While the French ISPs can accept the notice and take down procedure, they completely refuse the general surveillance obligation, the content filtering provision, and the new definition of e-mail. For the first time ever, they have launched themselves a petition sent to all their subscribers. In a single day, French ISPs have received 11,000 individual signatures.

The draft law must now undergo second reading by the French Senate, scheduled for mid-February. After that, a commission should be set up to approximate the text resulting from both Chambers. In case of final disagreement, the National Assembly has the ‘last word’. The parliamentary opposition (left-wing) has already been called upon by IRIS and RSF to submit the final text to the French Constitutional Council. In addition IRIS has committed to file a case against the French government for violation of the European legislation, in case the opposition fails.

IRIS comprehensive dossier on the LEN

IRIS petition

AFA, French ISP Association

RSF press release (09.01.2004) (French) (English)

Odebi, Internet users association

(Contribution by Meryem Marzouki, IRIS)