The government has taken the exact opposite course from the one laid out in recent court rulings and international recommendations that condemn filtering and cut off Internet access, and has done so in a context of increased pressure on journalists to reveal sources. France must not sacrifice online freedom of expression and Net neutrality for reasons related to security or copyright protection. In a country aspiring to become an Internet leader, the legislative straitjacket that is being deployed will impede innovation.
When online information topples
The France chapter of the 2011 “Enemies of the Internet” report, the first year France was added to the list of countries “under surveillance,” began with the observation that 2010 had been a difficult year for online journalists and their sources. The year 2011 has proved just as challenging, mainly because of escalating lawsuits against journalistic sources. Two Rue89 journalists and one from France Inter were indicted on August 30, 2011 based on a complaint filed by the Bolloré Group concerning information they released about this group’s activities in Cameroon. French Minister of the Interior Claude Guéant withdrew his complaint against Mediapart, according to which French intelligence services were spying on its journalists. Death threats were made against a Mediapart journalist who was covering the Karachi case. Read the “La tentation du contrôle” report published by Reporters Without Borders on February 27, 2012.
Another embarrassing example is the decision of the French High Council for Broadcasting (CSA) regarding the on-the-air mention of social networks such as Facebook and Twitter. In June 2011, the CSA found that “redirecting [people] to pages by naming the social networks concerned is a form of publicity that violates the provisions of Article 9 of the March 27, 1992 decree prohibiting surreptitious advertising." However, "redirecting TV viewers or radio listeners to the broadcast’s page on social networks without mentioning them has an informational purpose." The CSA therefore called on TV and radio stations to find creative ways to mention their Facebook and Twitter pages without naming them.
The Public Prosecutor’s Office sometimes shows its ignorance about new technologies by basing its decisions on a narrow interpretation of the role of information. The proceedings underway against Mikael Chambru, a volunteer journalist with news website La Voix des Allobroges, after he covered a demonstration, prove that. He was found to be a protestor on the grounds that he did not have a press card. The journalist would have faced a jail term of up to six months and a fine of USD 1,980, had the judge not dismissed the case in October 2011.
Meanwhile, in October 2011, the Court of Cassation recalled that the 1881 Press Law also applies to bloggers. The trial judges (of the Tribunaux de Grande Instance (TGI) – specifically the 17th chamber of the Paris TGI – are already applying this law by considering the specificity of the author of the incriminating article if he(she) is a blogger, notably in terms of good faith.
HADOPI law meets growing criticism
Aside from its omissions and shortcomings, the HADOPI law violates basic freedoms by making it possible to cut off people’s Internet access. Reporters Without Borders continues to call for its repeal.
In his report released in June 2011, Frank La Rue, the United Nations’ Special rapporteur on the promotion and protection of the right to freedom of opinion and expression stressed that "cutting off users from Internet access, regardless of the justification provided, including on the grounds of violating intellectual property rights law [is] disproportionate and thus a violation of Article 19, paragraph 3, of the International Covenant on Civil and Political Rights.” In his report, the UN rapporteur specifically denounces France’s "three-strikes [gradual response] law.”
Yet the country is still enforcing its repressive approach to copyright protection. At a July 11, 2011 press conference, HADOPI [the French digital rights authority] announced that 18 million reports from digital rights holders (out of 22 million French Internet accounts in France!), 1 million IP address identifications, 470,000 initial warning letters, and 20,598 second warnings, had been made. HADOPI said that it planned to hear 10 subscribers who had passed the “three-strikes” limit, and that it might transfer their case to the prosecutors. If convicted, they could be fined up to USD 1,980, and their Internet access could be suspended. Read the exclusive interviews of Jérôme Bourreau-Guggenheim, co-founder of SOS Hadopi and of Robert Thollot, an Internet user prosecuted by HADOPI for “blatant negligence,” since he allegedly failed to adequately secure his FreeWiFi Internet access.
On October 19, 2011, the French Council of State rejected the action for cancellation filed by the French Data Network (FDN) and Apple objecting to the HADOPI law’s decrees. The Commission nationale de l’informatique et des libertés (CNIL) withdrew its formal demand made to Trident Media Guard (TMG), a company that collects the IP addresses of alleged violators for HADOPI. Accused of having “inadequate security measures” following personal data leaks, TMG implemented certain procedures that seem to have satisfied CNIL, which closed the case. However, its litigation continues against TMG’s designated representatives, the rights holders.
Internet filtering is a violation of freedom of information, according to the Court of Justice of the European Union. The CJEU ruled that generalized Internet filtering violates the fundamental rights of European citizens, including the right to the free flow of information online. It also found that the protection of copyright cannot be assured at the expense of other basic freedoms such as freedom of information and privacy. The Court’s decision clearly states that “measures which would require an ISP to carry out general monitoring of the information that it transmits on its network” are contrary to European law and violate fundamental rights.
Loppsi: French law on guidelines and programming for the performance of internal security
France nonetheless has continued to expand its abusive filtering methods. Loppsi had already provided for some administrative filtering that had been implemented in 2011. Other provisions have since been added.
LCEN’s implementing decree
The draft decree implementing Art. 18 of the 2004 Law for Trust in the Digital Economy (LCEN) was denounced by the French National Digital Council in June 2011. It makes it legal to implement an administrative Internet filtering system according to very broad and vague criteria. The procedure provides for three steps based on the “notice-and-take-down” principle. Any blockings or content removals must be strictly limited and carried out within a legal proceeding framework. Reporters Without Borders is calling for the repeal of this decree.
The order to filter or remove content may be issued by several ministries, as well as by the National Authority for the Defense of Information Systems, an agency responsible for cyberdefense in France. Filtering is ordered without judicial review, and no recourse has been stipulated.
Consumer Protection Law
The draft Consumer Protection Law, aims to extend filtering and blocking to the violation of consumer rights. Its Article 10 includes a provision giving the DGCCRF (Directorate General for Competition, Consumer Affairs, and Repression of Fraud) the power to refer to a judge in order to block Internet websites that violate regulations governing consumer rights. Not only does this open the door to the overblocking of legitimate content, but the legal procedure is too expeditious to guarantee freedom of information.
During their review of the Law on October 4, 2011, the MPs rejected the amendment introduced by Socialist MP Corinne Erhel, who was advocating for a “moratorium on Internet blocking and filtering measures."
Unauthorized online gambling
Decree no. 2011-2012 of December 30, 2011 “on regulations for blocking an unauthorized online betting or gambling activity” requires “Internet service providers and website hosting companies” “to stop this activity by using the Domain Name System (DNS) blocking protocol,” an ineffective and dangerous mechanism.
The Copwatch saga
The way the Copwatch website case was handled perfectly exemplifies the fact that filtering is taking the course indicated by the authorities in charge of monitoring potentially illegal online content, even when that involves taking abusive measures. On February 10, 2011, the Paris Tribunal de Grande Instance (TGI) ordered the blocking of the Copwatch site (copwatchnord-idf.eu.org), which was charged with defaming policemen and disseminating personal information likely to endanger their lives. Full blocking was ordered, not just that of a few incriminating pages, as the Minister of the Interior was requesting. On the other hand, the latter was denied its request to block 34 “mirror sites” which it claimed reproduced the content, or to block “future websites.” At the Minister’s request, the Paris Tribunal had already ordered that the website be totally blocked. It had resurfaced in the meantime. Reporters Without Borders published a “Handbook for Bloggers and Cyber-Dissidents” outlining netizens’ rights, as well as their duties.
Internet neutrality in jeopardy
Filtering is becoming commonplace, even without adequate judicial supervision. The networks’ increasing privatization and their potentially arbitrary and discriminatory management are also impeding Internet neutrality. News website Owni revealed in November 2011 that unlimited household Internet access may be prohibited, while the daily newspaper Les Echos objected to the slower Web browsing speeds some mobile phone users are experiencing.
The “Telecoms Package,” a set of European Union measures transposed into French law in August 2011, has proved disappointing in terms of Internet neutrality, which it partially challenges. No parliamentary debate was held despite what was at stake in this legislation – which changes the concept and vision of the Internet in France – thus displaying the government’s flagrant lack of real commitment to consumers.
The order remains highly permissive in terms of Internet neutrality. Article 3, which states that the minister responsible for electronic communications, together with the Electronic Communications and Posts Authority (ARCEP), “promote the capacity of end users to access and disseminate the information of their choice and to access the applications and services of their choice," has no binding value. Article 33, which describes the information that should appear on an Internet subscription contract also does not guarantee Net neutrality, and instead just refers to the principle and demands more transparency on the subject. The contract must inform consumers about the procedures that can be used “to measure and direct traffic so as to avoid saturating or over-saturating a network line and the consequences as regards the quality of service.” The effect of this is to endorse practices that violate Net neutrality, and it suggests that ISPs can reduce broadband capacity in accordance with consumer volume, a point already raised by certain ISPs.
Other points remain particularly problematic: the lack of binding measures as regards the protection of personal data, the obligation imposed on ISPs to inform their clients about risky Web activity and its legal consequences, and the state’s use of electronic communications for security and public order purposes. Even more serious, especially after the recent riots in the United Kingdom, is the provision that allows the government to be able to disrupt communications.
French corporate responsibility
Last August, The Wall Street Journal visited a telecommunications surveillance centre in Tripoli and confirmed by means of a photo of the Amesys logo, that this French company belonging to the Bull Group had in fact supplied Libya with its Eagle massive Internet surveillance system, to be used mainly for intercepting emails on Hotmail, Gmail and Yahoo! messaging services, and for monitoring the MSN and AIM instant messaging services. Among individuals spied upon were Libyan journalist Khaled Mehiri and several opposition activists. France Telecom allegedly holds a 10% share of Amesys’ stock. French Defense Minister Gérard Longuet denied any responsibility on the part of the French government, and stated that no ministerial committee had ever been solicited to (or to not) authorize the sale by French companies of Internet surveillance systems to Libya and Syria. The Sherpa association filed a complaint in hopes that an investigation will be conducted to shed light on this transaction and eventually identify those responsible.
The firms Alcatel-Lucent, Eutelsat and Thalès were also slammed by some NGOs, including Reporters Without Borders, for their respective activities, mainly in Burma and China. WikiLeaks’ Spy Files highlight, as shown by the map posted by the Owni website, the respective surveillance market segments held by the companies Alcatel, Qosmos, Amesys, Vupen, Septier, Scan & Target, and Aqsacom. Reporters Without Borders is urging French authorities to demonstrate transparency about their relations with these companies and to take concrete national, European, and international measures (see “General Introduction”), to prevent French companies from exporting surveillance equipment to countries that violate human rights.
France’s Internet position in the global arena: A series of missed opportunities
France has chosen to stray from the line taken by some 40 countries with regard to basic Internet freedoms. French Foreign Minister, Alain Juppé, has in fact refused to endorse the UN declaration recognizing Internet access as a fundamental right, conditioning his signature on the recognition of intellectual property as a right equivalent to freedom of expression.
In such a climate, the eG8 conference held in May 2011 in Deauville was bound to be a missed opportunity. Civil society voiced its concerns, and denounced abusive attempts to regulate the Net. Official discourse ranged from the notion of a “civilized” Internet to that of a “responsible” Internet. Priority must be given to defending a free Internet accessible to all.
In late February, Reporters Without Borders asked the 2012 French presidential candidates to sign the “Pact 2012 for press freedom in France,” and notably commit to “ensure free Internet access, guarantee neutrality and abandon the use of administrative filtering by favoring solutions mutually worked out with host companies in order to facilitate the free flow information online.”