On 15 June, 2011, website PC INpact revealed the existence of a draft executive order which would give the French government the power to arbitrarily censor any content or service on the Net.
To implement article 18 of the law for the Digital Economy of June 21st, 2004, the French government is proposing to give to several of its ministries the power to order the censorship of online content that harms or otherwise puts at risk public order and security, the protection of minors, of public health, national defence, or physical persons*. Websites ranging from WikiLeaks to The Pirate Bay could fall under the broad scope of the decree.
The first step of the procedure would see the government notify a takedown request for the allegedly infringing content to the website publisher, who would have to cease publication of the said content or block access to it, or to remove it from the net entirely. It the latter fails to act within a 72-hour period, the government would then notify the hoster of contentious content. Finally, if the hoster fails to act within 72 hours, the government would issue a blocking injunction to Internet access providers.
The government asked the newly installed Conseil National du Numérique (Digital National Council) or CNN — a consultative body exclusively composed of representatives of online businesses — for its opinion on the decree. In its response [pdf], the CNN stressed that the scope of the decree is very broad, covering all kinds of online services, including non commercial ones.**
But the most serious criticisms was the absence of a judge to ensure the legality of filtering injunctions.
Following the opinion of the CNN, the minister for the Industry and the Digital economy, Éric Besson, announced on June 23rd that the Government would rewrite the decree. However, if the government follows the opinion of the CNN and introduces the intervention of a judge to control the legality of the content and the proportionality of the measure, it will still benefit from significant power to go after online services. A censorship power over the Internet that is probably unrivaled in the democratic world.
*The law’s article 18 states, in French, that the administrative authority is competent “lorsqu’il est porté atteinte ou qu’il existe un risque sérieux et grave d’atteinte au maintien de l’ordre et de la sécurité publics, à la protection des mineurs, à la protection de la santé publique, à la préservation des intérêts de la défense nationale ou à la protection des personnes physiques”.
**According to article 14 of the law, “also within the scope of electronic commerce are services such as those which provide online information, commercial communications and search tools, access and recovery tools, access to a communications network or data hosting, even if they are not paid by those who benefit from them”.
Félix Tréguer is Policy and Legal Analyst for La Quadrature du Net