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Victory for freedom of expression in new Digital Economy Law

(RSF/IFEX) - RSF has hailed the Constitutional Council's ruling on the Law to Promote Confidence in the Digital Economy (LEN) as a victory for freedom of expression. The Council announced its decision on 13 June 2004, striking down a highly-contested statute of limitations clause for initiating legal action against online content.

While applauding the ruling, RSF was quick to point out that problems remain, particularly in the proposed responsibilities of Internet service providers (ISPs).

"This decision confirms what we have been saying for months, namely that LEN did not respect free expression. But there is still a need to remain vigilant in monitoring the new law's interpretation by the courts. We will be closely observing the first rulings on the subject as indicators as to what type of content can be censored without prior intervention by the courts," said the organisation.

Statute of Limitations on the Internet: A Return to the Press Law

The council rejected an amendment introduced by Industry Minister Patrick Devedjian, which would have allowed legal action against online content three months after the offending file had been removed. A site editor could therefore have been sued for defamation for articles published years earlier. The council took the view that the measure ran contrary to the constitution because it established separate laws for press and electronic publications. It therefore decided that the limitation period should, for the time being, remain the same as for newspapers, that is, three months from the date the content was first posted. The council members specified, however, that "the principle of equality does not preclude different rules being applied in different situations." In other words, they accepted that the Internet should come under a different legal framework than the press, as long as it remained balanced.

Responsibilities of Service Providers: Courts to Decide

The council reaffirmed the principle of legal responsibility of ISPs in cases where they had been advised of the illegal nature of content. While such a measure effectively creates a separate law for the Internet, council members felt that it complied with the European directive. They did, however, tone down the text passed by Parliament, saying that service providers could only be held responsible if a judge had ruled the content illegal or if the web page was "clearly illegal." This last point picks up a recommendation by the consulting body Internet Rights Forum, setting out the limits of legal responsibility for ISPs. This means that French jurisprudence only recognises as "clearly illegal" content such as revisionist statements, child pornography, or justification of war crimes. It is therefore highly unlikely that ISPs would be convicted for posting defamatory articles, for example. To sum up, the nine council members said they were obliged to accept the creation of a separate law on the Internet because they felt that the principle already existed in the European directive.

After LEN?

RSF calls on all Internet users to be particularly vigilant about possible abuses, in light of LEN's onus of responsibility for ISPs. There is still a risk that ISPs will abusively censor the Internet, despite the Constitutional Council's advice. The organisation also recommends that ISPs consult free expression organisations before setting up screening procedures for questionable content.

Finally, RSF urges civil society groups to pay close attention to the European Union's (EU) examination of directives affecting the Internet, to the extent that, as the Constitutional Council has just confirmed, European law takes precedence, in most cases, over the French constitution. LEN therefore cannot, in actual fact, be amended - and particularly on the issue of private law - until the summer of 2005, after the EU's re-examination of the June 2000 directive on electronic business.