Euro-Counsels

published in French on Juriscom.net le 09/06/2004

Electronic communication, audiovisual media communication?

The bill on digital economy adopted on May 2004 13th by the French Senate [senat.fr] is the text proposed by the Parlementary Joint Commission as the Constitution envisages it.

This law is very criticized, by the Government opposition as well as by associations defending freedom on the Internet. This bill states :

• private censorship exercized by internet services providers (such as hosters);
• a definition for internet services which is not relevant;
• limitations to internet communications.

Moreover, the text does not make any difference between e-mail and on line communication, thus being likely to make electronic mail lose its identity with postal mail and as a consequence, its confidential and inviolable character.

In addition the bill regulates the electronic trade and advertising whether online or by electronic mail.

The law has been transmitted to the Constitutional Court by socialist members of Parliament, asking the High Court to censor the provisions conflicting with the private character of the email, to hosters liability, and those relating to statute of limitations for press infringements.

The society IRIS (Imaginons un Internet solidaire) and the Human Rights association have transmitted a survey to the Constitutional Court, in order to bring their support to the opposition, in particular relating to articles 1, 9, 13, 14 et 37. The recommandation of the Forum des droits sur l'internet dated 6 Feb. 2003 gives many explanations.

The reader will also refer to the position expressed by its council of orientation on May 19, 2004.

Contents of the Bill (Loi sur l'Economie numerique - LEN)

The new law intends to make certain modifications to the law n°86-1067 of September 30, 1986 relating to the audio-visual communication and adds a certain number of definitions. A new category of communications is added: the "communication to the public by electronic means".

Article 1 of the law states the liberty of communication to the public by electronic means. It is however a limited liberty, in particular by "the respect of the human dignity, of third party freedom and property and of the pluralist character of the expression of currents of thought and opinion and, by the respect of public order, by national defense needs, by civil services needs, by technical constraints inherent to communication means, as well as by the requirements of audiovisuels services and by the developement of audiovisual production".

It is important to note that on line services are precisely not subject to the technical constraints inherent to the scarcity of the channels of diffusion, like the radio and the television. Those limitations stated by the bill appear not to be necessary, without taking into account the uncertainties generated by the limitations due to "national defense needs or civil service".

The legislator has defined a new category, "services of online communication to the public", sub-divided in two sub-categories :

1. services of audiovisual communication (which are not integrated in the general category of "communication to the public by electronic means" - specialists having considered that the electromagnetic impulse generated by an hertzian transmission refers to "electronic");
2. services of communication to the public by electronic means.

The definitions adopted by the Parliament are obscure, dividing audiovisual communication, depending on the nature of the contents transmitted, (television or multimedia services such as web sites) as well as depending of transmission means. The article 1 states that the audiovisual communication is "all communication to the public of radio or television services " as well as "all communication to the public by electronic means of services except those of radio and television and not integrated in communication to the public by electronic means as defined in article 1 of the present Bill.". How clear ! Internet network and services of audiovisual communication as defined by the law of September 30, 1986 (n°86-1067 relating to the audiovisual communication) in its old version are thus definitively not included in audiovisual communication services.

Christian Paul, Deputy of Nievre and author of an important survey " About Law and Freedom on the Internet, Co-ruling, French contribution to a worlwide regulation" transmitted to the Prime Minister on June 2Oth has made sharp reserves on the definitions of the law, saying that they were not operational(source: Rapport de la commission mixte paritaire de l’assemblée nationale [assemblee-nationale.fr]).

Despite everything, this text is the first to define online services or the electronic trade.

Article 1 states that "communication to the public by electronic means is the provision to the public or to categories of public, by means of electronic communications, of signs, signals, written documents, images, sounds, or messages of every nature which are not private correspondences".

This same article inserts a definition of the electronic mail, without distinguishing between strictly private and confidential e-mail and e-mail, for example, sent to a forum of discussion, the latter being by nature a communication to the public. The risk of assimilation with an on line service would be thus possible, without precision of the law. For exemple, an employer could assume the right to read the electronic correspondence of his employees.

The text also envisages a new principle of responsibility for the actors of the Internet, that is to say internet providers and hosters.

History of a fallen through regulation: obligations of internet providers and hosters

Articles 6 and 9 of the law regulate respectively civil and criminal liability of internet providers and hosters.

By principle, the text of the LEN transposes through those provisions the Directive 2000/31/CE [foruminternet.org] of June 2000, on electronic commerce. The European text, in articles 12 to 14, states an exoneration of liability of internet services providers under certain conditions. Those providers supply either "Mere conduit" (article 12), or "caching" services (article 13) - i.e. automatic, intermediate and temporary storage of information. And, for article 14 - hosters.

The directive states the principle under which mere conveyors of information bear no liability as long as they do not modify the information or do not chose its recipient. Moreover, they should obey to judge injunction, or injunction made by an administrative authority made to put an end to a violation.

The caching services provider will have no liability if " the provider acts expeditiously to remove or to disable access to the information it has stored upon obtaining actual knowledge of the fact that the information at the initial source of the transmission has been removed from the network, or access to it has been disabled, or that a court or an administrative authority has ordered such removal or disablement. "

As for hosting services providers, the directive states "Member States shall ensure that the service provider is not liable for the information stored at the request of a recipient of the service, on condition that: (a) the provider does not have actual knowledge of illegal activity or information and, as regards claims for damages, is not aware of facts or circumstances from which the illegal activity or information is apparent; or (b) the provider, upon obtaining such knowledge or awareness, acts expeditiously to remove or to disable access to the information. 2. Paragraph 1 shall not apply when the recipient of the service is acting under the authority or the control of the provider. 3. This Article shall not affect the possibility for a court or administrative authority, in accordance with Member States' legal systems, of requiring the service provider to terminate or prevent an infringement, nor does it affect the possibility for Member States of establishing procedures governing the removal or disabling of access to information."

However, in its transposition of this text, the French legislator inserts in its article 6 a scheme of liability already proposed in 2000 (Bill n° 2000-719 of 1st august 2000) and censored by the Constitutional Court.

This scheme was as follows : civil liability of hosters could not be engaged "for activities or information stored at the request of a recipient of these services if [they] were not effectively aware of their illicit character or of facts or circumstances that made appear this character or if, as of the moment when they were informed of it, they acted promptly to withdraw these data or to make their access impossible " ; and their criminal liability cannot be engaged if they "were not informed of any illicit activity or information" except if " as of the moment when they were informed of it, they did not act promptly to withdraw these data or to make their access impossible".

This knowledge can result from the simple denunciation by a person, whoever, as long as she identifies precisely and as the Bill states, determines the reasons why the said information should be withdrawn from the network, their legal grounds, and evidence of the facts.

The legislator - apparently inspired by the recommendation of Forum des droits sur l'internet dated 6 February 2003 - seems to have understood lessons from the sanction of the Council inflicted in 2000, even if it is - in our opinion - not enough to guarantee the rights of the citizens.

In 2000, the text proposed an exoneration of liability of hosters if, being informed by a third party, " estimating that the contents hosted is illegal or causes damages to the said third party, the hosters did not act with due diligence".

The Constitutional Court, in a decision dated July 27th 2000, censured this amendment (proposed by the deputy Patrick Bloche) stating:

"Considering that the legislator, in the frame of the conciliation between freedom of communication and protection of third parties interests and respect of public order, can define, when illicit contents are stored, a specific ; But under the condition to respect the principle of the principle of the legality of offences and of sanctions and of the provisions of the article 34 of the Constitution under which the Law states : "the rules concerning : ... determination of offences and crimes as well as their punishment... ";

Considering in the present case, that under the third paragraph of the new article 43-8 of the Bill of September 30th 1986 the legislator subjected the criminal liability of hosters from one hand, if a third party has informed the hosters that a content causes him damages, and from another hand, that after this information, the hosters did not act with diligence" ; But forgetting to precise the formal conditions under which such information must be made, and without determining the essential characteristics of a faulty behavior engaging, depending the case, the criminal liability of the said hosters,the legislator has violated the rules concerning his own competence under the article 34 of the Constitution ;

Decision n° 2000-433 DC [foruminternet.org]).

But, remains in article 43-8 of the Bill of September 30th 1986 the provisions under which when a hoster has been seized by a judicial authority and does not act promptly to withdraw the contents, its liability, whether criminal or civil, remains engaged.

The new Bill then states the conditions under which the hosters shall be informed, and the essential caracteristics of a faulty behavior. But, the Constitutional Court, seized to examine the new text, has decided not to sanction it, for reasons explained below in this article. A new kind of censorship has been created, transforming the hosters in "Great Inquisitors", having the power to determine, even prior to a Court of Justice, what is legal or not !

The bill states that the hosters have no general obligation to monitor nor to search illegal activities. The Bill is - regarding this point - in conformance with the principles established in the Directive 2000/31/CE [foruminternet.org] relating to electronic commerce, and states clearly, in its article 15, that there is no such obligation for technical providers.

On the contrary, the hosters shall help the fight against the grave offences such as apology of the crimes against humanity, racial hatred or child pornography, and also offences stated in the article 24 of the law of 29 July 1881 about freedom of the press (including incentive to committ offences against persons or property).

They must, for doing so, set up technical means easily accessible and visible allowing every person to inform the provider/hoster of those illegal data/information. They also have to inform any public authority and, must advertise the public of the means they use to fight against illegal activities. Every infringement shall be punished with one year imprisonment and/or fines up to 75.000 euros.

About liability of Internet Access Providers, the article 9 of te Bill - which will be codified in article L. 32-3-3 of Code des Postes et des Télécommunications (telecommunications and postal service Code)– states that "every person with the activity of transmitting contents via telecommunications networks shall not engage its responsibility whether civil or criminal, for those contents, except in the case that this person is at the origin of the litigeous transmission or this person selects or modifies the contents that are transmitted". It is also stated in the article L. 32-3-4 that internet providers having recorded some contents on proxy servers, in order to accelerate transmissions, shall be considered as responsible whether under civil or criminal law, only if they have modified those contents, if they did not act in conformity with their own conditions of access or usual update rules, or have prevented the legal and normal use of technology to access those datas. A person, real or legal entity, which acts as a hoster or provides caching services will be responsible if "it did not act with diligence to withdraw the contents stored or to make their access impossible, as soon as it was informed either of the fact that the transmitted contents were withdrawn from the network, or that the access to the contents transmitted initially was made impossible, or that the legal authorities ordered to withdraw from the network the contents transmitted initially or to make their access impossible".

In 1996, Mr Francois Fillon, Minister for the Telecommunications, had tried to add in the law of 1986 an article exonerating internet providers of their criminal responsibility, if they provided to their customers some technical device, enabling them to filter any illicit contents, and if the provided services had not been the subject of an unfavourable report, published in the OJ, emanating from the higher Council of telematics. One imagines the size of the OJ in front of the vastness of the services of the cyberspace (and the number of people charged to give this opinion).! But at the time, the French Internet just started.

The Higher Constitutionnal Court had considered, at this time, that only the legislator could assure "safeguard of the constitutionally guaranteed rights and freedom " and as long as the legislative power delegated its powers to an administrative authority, it should have determined the limits of the delegation, in other means than of very general ways (about this question, see Lionel Thoumyre, in French only "Responsabilités sur le web : une histoire de la réglementation des réseaux numériques", Lex Electronica, vol. 6, n°1, printemps 2000, partie IIB).

This time, the Internet providers and simple conveying are indeed exonerated except if they contributed to the development of information, or stored it longuer than its presence on the networks or, did not act promptly when they are seized by a legal authority.

The editors on Internet are not subjected to the regulation of the Press infringements

The text of law also regulates the infringements of press regulations. Those will be prescribed under the conditions of the law on the press (three months) when the text is also published in a paper edition, as soon as the texts are identical. For the publications only on line, the term of limitation starts as from "the date where it stops to be at public disposal.".

The press on-line infringement becomes thus imprescriptible indefeasible, taking into account the fact that the online text is considered as always available. But this difference is not justified, as a paper text is always accessible, in a public library or in a store... Why the press on-line should be so penalized ?

Electronic Commerce

In a title 2 "Electronic Commerce", the legislator envisaged specific provisions intended to regulate Electronic commerce. A Chapter 1 is dealing with general principles, a Chapter 2 is dealing with on line publicity, and a Chapter 3 is dedicated to contracts obligations, concluded on-line.

On-line commerce is defined as : "an economical activity by which a person proposes or makes, at distance, and by electronic means, the provision of goods or services. ;

Those services are included : - on-line information, commercial communications (advertisement) and researches tools, or tools for access and/or recovery of data, access to a network of communications, including when those services are not paid by those who receive them (article 14).

It is important to note that the definition is new. No definition where stated previously in the French texts, nor in the European Directive 2000/31/EC [foruminternet.org] of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market ('Directive on electronic commerce') [Official Journal L 178 , 17/07/2000 P. 0001 - 0016].

The cybermerchant becomes responsible, under the new bill, of the goods sold to the consumer, except in case of force majeure or of a third party intervention (a party not part of the service sold). The vendor is binded by the result of the sale, and that includes the case when the goods are not delivered even by faul of the postal/delivery services.

The law applicable to the online contract

The law applicable to the electronic contract is that of the Member State on which the merchant is established, subject to the common intention of the contractors. How this intention must appear, the legislator says nothing. However, and they are not least difficulties resulting from this text, the acceptance of such a clause by the consumer could fall under the definitions on the abusive clauses.

The application of this provision shall not however have for consequence " to deprive a consumer, having its residence on the French national territory, from the protection of the mandatory provisions relating to contractual obligations, and in accordance with the international treaties ratified by the France".

The text does not speak about the competent court. The judiciary competence is defined by the EC Regulation EC 44/2001 from the Council, December 22nd 2000, OJ EC January 16th 2001. This Regulation modifies the Brussels convention of september 27th 1968, stating in its article 16 : " The proceedings brought by a consumer against the cocontractant can be located either in front of the courts of the Member State in which the merchant is domiciled, or in front of the court of the place where the consumer is domiciled. ". The consumer has an option. Practically, it is obvious that the consumer will choose the place where he is domiciled. The Judge will have the difficult task to make an interpretation of the scope of the electronic contract, and of a foreign law applicable to this contract.

This regulation being of direct effect within the European Union, no necessity to implement these provisions in the French bill was necessary.

Publicity made by electronic means

Article 22 of the Bill, widely commented (see Guillaume Tessonnière, "La lutte contre le spamming : de la confiance en l'économie numérique à la méfiance envers ses acteurs ", Juriscom.net, 2 avril 2004) , choses the system "opt-in", stopping the procedure called spamming. This system, as a matter of fact, prohibits advertisement by massive e-mailing, except if the consumer expressly agreed to this sending by subscribing on a specific list.

Obligations taken under electronic form

The French text implements the Directive "Electronic Commerce" and places the cybermerchant under important obligations such as - obligation to clearly identify the moment where the contract is concluded. The merchant must state " the different steps necessary to conclude the contract by electronic means ". It is seldom the case in practice, the consumer having not a clear vision of the integrality of the process of contracting. The contracting offer must also mention technical means allowing the consumer to correct errors of typing of data, and to identify them. The languages in which the contract can be concluded, as well as conservation methods (if available) and conditions of conservation must be specified.

The provisions of the new bill refer to contracts concluded via an internet web site. They shall not apply to contracts concluded by e-mail. Moreover, merchants will have the possibility to derogate to these provisions, in their mutual relations.

The cyber-merchant must also place at the disposal of the Net surfer, the professional rules to which he is subjected.

All these provisions will be stated under article 1369-1 of the French civil Code.

When the contract is concluded, acknowledgement of receipt must be sent by electronic mail (Article 1369-2).

An Ordinance will be taken by the Government, in order to specify the formalities of establishment and conservation of the electronic contracts.

Conclusion

The text is far from being satisfactory and on many points, it attempts to freedom of expression. It is the reflection of a reflexion if it is not hasty, is at the very least incomplete. Its application will undoubtedly be hazardous and will not fail to give place to many litigations.