17 April 2003

Julie Ruelle

The draft bill for the digital economy (the "Draft"), which was presented on January 15 by the Raffarin government, was adopted by the National Assembly on February 26, 2003 in less than four hours.

This Draft, which must now be discussed before the Senate, transposes the Directive of June 8, 2000 relating to certain legal aspects of the services provided by the Information Society[1]. For several weeks now, this text has lead to lively discussions and objections that relate, for the most part, to the new liability scheme for Internet professionals.

Indeed, the new provisions relating to the liability of Internet professionals, if they aim at clarifying and completing the rules set out by the law of August 1, 2000 (1), still include numerous uncertainties and inaccuracies (2).

1. The New Provisions adopted by the National Assembly:

A. Provisions of General Application:

The Draft affirms the principle that service providers are neither subject to a general obligation to monitor information that they transmit or store, nor to a general obligation to research facts or circumstances that are revealed from illegal activities.

Before the adoption of the law of August 1, 2000, the courts imposed such obligation on host providers[2].

If the silence of the law of August 1, 2000 was already leading to the abandoning of such case law (in order to comply with the European provisions), this new provision should make this explicit.

However, the Draft provides that hosts are required to implement all methods that are compliant with the state of the art in order to prevent the distribution of certain data, such as the glorification of crimes against humanity, the incitement of racial hatred and the promotion of child pornography[3].

The Draft also specifies that these service providers are not producers in the sense of the law of July 29, 1982 (this specification, therefore, avoids applying the cascade of liability in matters of “media offences” to the Internet).

Finally, a set of Internet-specific summary proceedings is to be created (i.e., summary proceedings that, in particular, stop the storage of content or forbid access to such content).

B. Particular Provisions

As with the law of August 1 2000 and the Directive, the Draft again makes the distinction between access provider/host provider/publishers, but only provides for civil and criminal liability of host providers.

Regarding Internet access providers, it is regrettable that the text does not contain any provision relating to sanctions applicable to these suppliers in the absence either of information relating to the existing filtering methods or of the offer of the filtering measures [4].

Regarding more particularly host providers, their liability is contemplated from both a civil and criminal point of view.

Even if, in accordance with the provisions mentioned above, host providers are not bound by a general monitoring obligation, they are nevertheless subject to an obligation of evaluating the lawfulness of the content they host.

Indeed, pursuant to the new Article 43-8, the civil liability of hosts can be engaged « if, at the time when they became aware of the unlawful nature, or of circumstances that demonstrate this unlawful nature, they did not act promptly to remove this data or disable access to them ».

The Draft also contemplates the criminal liability of hosts, but from an angle that is a little different from civil liability, such that hosts will only be criminally liable if, « with full knowledge of the facts, they did not act promptly to stop the distribution of information or of an activity for which they could not have been unaware of the illegal nature ».

In each category of liability, it is the knowledge of the illegal nature of the information or activity that is at the heart of the scheme.

The character or nature of such knowledge shall be specific and clear. Inaccuracies remain, however.

2. Critical Evaluation:

This new Draft liability scheme can be criticised to the extent that it imposes on hosts the responsibility of determining what is legal and what is not (it must be remembered that at the present time, this role belongs to the judge since the hosts’ liability can only be engaged « if, having been seized by a legal authority, they did not act promptly to prevent access to this content »).

Therefore, the assessment of the lawful nature is likely to be risky. There are chances that the website interruptions or service suspensions will often be undertaken as reflex protection. Indeed, one can reasonably assume that if there is a doubt, hosts will not hesitate to suspend the hosting of numerous sites.

However, in order to avoid certain practical abuses, the Draft provides that “the act of characterising an appearance of unlawfulness in an abusive way in order to obtain the withdrawal of data or to make access to it impossible, constitutes the impeding of the freedom of expression, work, association, meeting or demonstration[5].

Furthermore, there will be situations where hosts will not have any elements permitting them to undertake an evaluation, in infringement matters; for example, a host may not know whether the author of the site indeed holds intellectual property rights in it or any content appearing on it.

That is why, in order to compensate for the hosts’ hesitations, certain commentators have demanded that the relevant awareness be clearly established. This would allow hosts’ liability in the cases where the dispute relates to an infringement, or further still to slander to be limited[6].

Moreover, before the parliamentary debates, the question relating to the manner in which the existence can or must be brought to the knowledge of the service provider was raised[7].

The Draft partially responds by providing a notification procedure. Therefore, the awareness of the litigious facts will be considered as acquired by the hosts since they will have received a notification that includes certain information regarding these facts.

The text, however, remains incomplete. Indeed, on the one hand, this notification is only optional. On the other hand, should it be considered that there is an “awareness of facts” since there will have been a notification, but which does not respond to the legal forms?[8]

The imprecision of the notions of “actual awareness” or “circumstances that make this illegal nature appear” also risks, in the absence of modifications at the time of parliamentary debates, rising yet again significant disagreement on the way the provisions should be interpreted.

From the foregoing, it is obvious that in order to prevent the failure of the law of August 1, 2000, the Draft needs to be completed and made more specific. Therefore, the debate before the Senate is awaited.


[1] Directive 2000/31 of June 8, 2000, JOCE L 178/1 July 17, 2000.
[2] Ex. Court of First Instance of Paris. Nanterre, December 8, 1999; Court of Appeals of Paris June 8, 2000.
[3] This provision, which did not exist in the initial draft bill, had been suggested in the Report of February 12, 2003 made in the name of the Commission of Economic Affairs, the Environment and the Territory on the Draft bill for the digital economy.
[4] Nevertheless, a fine of 3750 Euros was provided in the event that data that allows the identification of the site’s author is not kept or if this data is not provided to the legal authorities.
[5] This provision followed the Report of February 12, 2003 made in the name of the Commission of Economic Affairs, the Environment and the Territory on the Draft bill for the digital economy.
[6] Cf. note 5.
[7] Recommendation relating to the draft bill for the digital economy of February 6, 2003 of the Forum on Internet rights.
[8] The text indeed provides that the notification must include a certain number of elements, such as the date of notification, the identify of the notifying party, the description of the litigious facts and their specific location, the grounds for which the content must be withdrawn, the copy of the correspondence to the author or publisher of the site who is asking for the withdrawal of the litigious information.