European Union’s Telecoms Package incorporated into French law

Reporters Without Borders deplores the incorporation of the European Union’s so-called Telecoms Package into French law. Adopted in November 2009 by the European Parliament, it was transposed into French law by a 24 August decree that was published in the official gazette two days later. “The Telecoms Package has been adopted at the national level without any parliamentary debate although it changes the concept and vision of the Internet in France,” Reporters Without Borders said. “Many issues remain unresolved. The government has displayed a complete lack of commitment to consumers.” Four issues are especially problematic: the lack of binding measures as regards the protection of personal data, the obligation imposed on Internet Service Providers to inform clients about risky activity and its legal consequences, the state’s use of electronic communications for security and public order purposes, and the partial violation of the principle of Net neutrality. Net neutrality The decree is not very rigorous in the defence of Net Neutrality. Article 3 says the minister in charge of electronic communications, together with the Electronic Communications and Posts Authority (ARCEP), promotes “the capacity of end users to access and disseminate the information of their choice and to access the applications and services of their choice.” But this has no binding force. Article 33, which describes the information that should appear on an Internet subscription contract, 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. It suggests that ISPs can reduce broadband capacity in accordance with consumer volume. State’s use of electronic communications for public order purposes Even more serious, especially after the recent riots in the United Kingdom, is the provision for the government to be able to disrupt communications. Article 40 says that “any mechanism for rendering electronic communications apparatus inoperative” is permitted “for the needs of public order.” Article 5 allows the authorities to send emails or SMS messages to the public in order to warn of an “imminent danger.” The failure to define this term is problematic and could have the kind of perverse effects that have been seen with authoritarian regimes. During the revolution in Egypt, the government sent out SMS messages urging the population to join the pro-Mubarak forces. ISPs forced to notify clients about illegal behaviour Article 34 forces ISPs to inform subscribers about “the legal consequences of using electronic communication services for illegal activities or to disseminate harmful content.” This is a first step towards making ISPs and hosting companies legally responsible for content. Reporters Without Borders is also concerned about the failure to define “harmful content,” which could potentially be applied to any information circulating online. While Reporters Without Borders welcomes the attempt to be transparent about “Internet dangers,” it points out that the job of monitoring should not be foisted on to the private-sector companies that provide Internet technical services. ARCEP’s powers have been reinforced. This decree enables it to police Internet operators, intervene in disputes between them and separate infrastructure operations from services. It is encouraging that, under article 16, ARCEP can “set the minimal service quality requirements” in order to “prevent service degradation and the obstruction or slowing of network traffic.” Reporters Without Borders nonetheless points out that a “minimal requirement” is not a “sufficient requirement,” a significant difference as regards guaranteeing Internet access for everyone. Personal data Reporters Without Borders welcomes the fact that Internet operators are obliged to notify subscribers about any breach of personal data. “Direct canvassing by means of automated telephone phone call, fax or email systems” will also be banned. But the decree offers no significant advance as regards the protection of personal data. And it allows the police and certain judicial officials to access an operator’s list of subscribers. “The incorporation of the Telecoms Package into national law has not respected the French government’s undertaking to promote Net neutrality and Internet development,” Reporters Without Borders said. “This is not the first broken promise by a government that has decided to stray from the line taken by some 40 countries on basic Internet freedoms. “Its foreign minister, Alain Juppé, has in effect refused to endorse the UN declaration that recognizes the Internet as a fundamental right, conditioning his signature on the recognition of intellectual property as a right equivalent to freedom of expression.” The decree makes no reference to the opinion issued by the National Digital Council at the government’s request, in which it criticized requiring Internet Services Providers to notify subscribers about illegal behaviour. France was included in the “countries under surveillance” in the Enemies of the Internet list that Reporters Without Borders issued on 12 March.