Opinion on draft legislation on the information society

In a letter dated March 30, 2001 from the Minister of Culture and Communication and the Secretary of State for Industry, the Council was asked to give its opinion on the draft legislation on the information society. After hearing the comments of the professionals concerned, the Council made the following observations, mainly concerning the legal status of on-line communication services and diffusion networks.
On these two subjects, the Council notes that the convergence of services and networks should encourage the legislator to aim for technological neutrality, and therefore equal treatment, both between services with similar content accessible on different media, and between different media providing access to the same services.
Admittedly, the principle of technological neutrality needs to be tempered according to various criteria, such as the scarcity of resources (limited capacity for transporting services on terrestrial and cable broadcast networks), the relative impact of services depending on the medium used, or the varying degree of user intervention in accessing services and in any personalization of their content, all of which justify different levels of obligation.
Nevertheless, technological developments would have fully justified a radical change in the legislation, calling into question the current organization of the law of September 30, 1986 (medium by medium) and establishing specific schemes for services making images or sounds available to the public, regardless of the medium used.
The Conseil regrets that this is not the approach adopted in the draft legislation on the information society, which is limited to partial adjustments that leave significant disparities in legal regimes between neighboring services or media.

I - Schemes relating to on-line communication services

The definition of on-line communication, the legal status of on-line communication services, and the scope of services over which the Conseil could exercise control, all suffer from major ambiguities, which are likely to lead to difficulties of application.
Basically, the Conseil considers that the criterion of "associated services" on which the draft legislation bases its specific capacity to intervene is irrelevant. For its part, it considers that the principle of technological neutrality would have justified the French Superior Audiovisual Council's exercising appropriate regulation over all services making images or sounds available to the public.

Article 9: Legal deposit
The Conseil is in favor of the principle of extending the scope of legal deposit to the content of online communication services, which nonetheless raises legal and practical difficulties, particularly with regard to storing personal data, selection criteria, the capture of content accessible by subscription and the preservation of the coherence of all the multimedia components of the sites.
In the Council's view, these difficulties and the timeframe set for this provision to come into force (thirty-six months after publication of the law) justify the drafting of the implementing decree after wide consultation with the professionals concerned.

Article 11: Definition of online communication
a) In article 2 of the 1986 law, the draft legislation introduces a definition of online communication, which appears as a subset of audiovisual communication.
The Conseil's verdict is that this definition is satisfactory in principle, insofar as it does not call into question the fact that services such as websites are covered by audiovisual communication law, while preserving their specificity. The French Superior Audiovisual Council has had occasion to stress the relevance of such a link.
Nevertheless, it notes that the definition of audiovisuel communication, which has not been modified, remains very broad in relation to its common understanding, particularly insofar as it includes alphanumeric data. In this respect, it would have been desirable, as the Conseil d'Etat had recommended in its July 2, 1998 report on the Internet and digital networks, to replace the concept of "audiovisual communication" in the September 30, 1986 law with the more explicit concept of "communication to the public". Within "communication to the public", "audiovisual communication" could then have been redefined to exclude content offered exclusively in the form of alphanumeric data, which today makes up a large part of the Internet service supply.
In the absence of such a choice, the wording chosen to define online communication raises a number of difficulties.
On the one hand, it does not make it sufficiently clear that online communication is a component of audiovisual communication (even though this is the government's intention, as stated in the explanatory memorandum). This ambiguity is strengthened by the fact that Article 10 of the draft legislation establishes the principle of freedom of online communication, even though this principle already derives from Article 1 of the 1986 law, which affirms the freedom of audiovisual communication as a whole.
Furthermore, the criterion used to identify online communication within audiovisual communication, i.e. transmission "on individual demand", is in line with the e-commerce directive of June 8, 2000, but would benefit from some clarification as regards the technical details of this individual demand.
The Council also notes that the distinctive criterion between the audiovisual communication scheme, which includes online communication and is based on "making available to the public or categories of the public", and the private correspondence scheme, which is based on transmission "intended for one or more natural or legal persons, in a specific and individualized manner", raises application difficulties for certain online communication services which send users personalized content on individual request, as of a content base offered to the general public.
The Council considers it advisable to specify the service category to which online services making images or sounds available to the public fall, whether they involve the full and simultaneous transmission of radio and television services shown on other media, or the diffusion of original services, and whatever the technical means of access to these services, whether downloading or immediate streaming.

b) The draft legislation specifies (article 43-6-1 of the 1986 law, introduced by article 11 of the draft legislation) that the provisions of the chapter of the 1986 law dedicated to online communication services are applicable, "as are articles 17 and 41-4", which deal with competition and concentration in the audiovisual industry.
The French Superior Audiovisual Council considers this last clarification to be extremely awkward, as it could be interpreted as restricting the French Superior Audiovisual Council's current powers over all audiovisual communication services to online communication.
Indeed, since articles 17 and 41-4 are expressly referred to for online communication services, it could be deduced a contrario that they would no longer apply to them:
- Article 1, which enables the French Superior Audiovisual Council to issue notices to publishers and distributors of audiovisual communication services, and which lays down the principles and objectives that justify infringement of the freedom of communication;
- nor article 15, on the protection of young people, the first paragraph of which applies to all audiovisual communication services.
The wording chosen thus appears to be a source of ambiguity and deserves to be clarified. The Conseil considers that Articles 1 and 15, which are very general in scope and aim to ensure a high level of protection for objectives of general interest, should apply to online communication services that make images or sounds available to the public. In particular, it considers that it has particular legitimacy with regard to the protection of children and adolescents, and respect for the dignity of the individual, which would justify it being able to issue notices on this subject to online communication service editors. Such notices could, in particular, encourage optimum use of the filtering schemes provided for in article 43-7 of the law of September 30, 1986.
As far as articles 17 and 41-4 are concerned, the Conseil considers that their application to online communication services is perfectly suited to dealing with any risks of restrictive or anti-competitive practices. The implementation of horizontal and vertical concentration strategies by the most powerful players in the media and Internet sectors, who control all segments of the chain from production to publishing and distribution of audio and video content and music, can distort competition in access to content or access to customers for services distributed over digital networks.
Abiding by the principle of plurality laid down in article 1 of the 1986 law also requires effective and fair competition between network operators and online service editors.

Article 12: Regulation of online communication services
a) Article 12 of the draft legislation introduces into articles 28, 29 and 30-1 of the 1986 Act a reference to "online communication services associated with the main program and intended to enrich or complement it".
This notion of "associated services" is new, since the 1986 law currently distinguishes between :
- data associated with the main program and intended to enrich and complete it", mentioned in article 28, which covers teletext-type data with a very close editorial link to the TV program, and which are the subject of specific stipulations in the agreements of certain terrestrial channels;
- audiovisual communication services other than television", mentioned in article 30-1, which may be included in the application file of a digital terrestrial television service editor, but which may have no editorial link with the main service.
The draft legislation adds this notion of "associated services", the definition of which remains extremely vague and is in no way clarified by the explanatory memorandum, which states that the French Superior Audiovisual Council must "be in a position to apprehend the overall supply of audiovisual services for which it is responsible".
In particular, the question arises as to whether this notion presupposes that it is technically possible to access a service via the program (particularly in digital terrestrial television), or whether it covers websites published by a provider of a private terrestrial radio or television service, and which have a close link with the service (identity of name, reference to the site in the service's programs, inclusion on the site of all or part of the service's programs, etc.).
Clarification of this concept is therefore essential.
The Conseil also points out that, if the notion of "associated services" were to be based not on technical but on editorial criteria, it would raise a number of practical difficulties, as audiovisual groups develop a variety of highly evolving activities on the web, whose editorial link with the radio or television program is more or less important and stable, and which do not lend themselves well to regulation on a service-by-service basis.
The cross-promotion on different media of different versions of the same editorial content also raises the question of the risk of distortion of competition between websites linked to terrestrial channels, which benefit from wide exposure on these channels, and other sites.
In any case, the Conseil notes that the inclusion of "associated services" in the channel agreement (article 28 of the 1986 law) would result in the French Superior Audiovisual Council controlling services associated only with private terrestrial channels, to the exclusion of public-sector channels and cable and satellite channels, thus creating a disparity in treatment that is hard to justify. If such a provision were to be maintained, it should at the very least be accompanied by a similar measure for public-sector channels shown on terrestrial channels, whose online activity could be governed by the terms of reference set out in article 48 of the law of September 30, 1986.
As for taking into account the existence of an online communication service supply in the criteria for allocating radio frequencies (article 29 of the 1986 law), this would appear to be totally inappropriate. In fact, the existence or otherwise of a website associated with a radio station does not appear to be a discriminating factor in the granting of a frequency modulation license in a given zone.
Furthermore, the Conseil considers that the wording of article 12 may encourage the creation of screen structures designed to circumvent this obligation, which introduces inequality of treatment between traditional operators diversifying into online services and new Internet players.
Finally, the Council points out that the implicit introduction of an authorization regime for these services would be contrary to article 4 of the e-commerce directive.

b) Rather than the very limited powers provided for in article 12 of the draft legislation, the Conseil considers that it should exercise its general powers in the field of audiovisual communication (articles 1, 15, 17 and 41-4 of the 1986 law) over all online services making images or sounds available to the public.
Consequently, the text of article 12 of the draft legislation could be replaced by the following wording, to be inserted at the end of II of article 11:
"Article 1 and the first paragraph of article 15 of the present law are applicable to online communication services which make images or sounds available to the public or to a category of the public".
The French Superior Audiovisual Council would thus have a power of notice in respect of such services.

c) The Conseil also points out that audiovisual communication services which are neither radio or television services, nor online communication services, have been in a virtual legal limbo since the law of August 1, 2000, which the draft legislation does not fill.
This is particularly the case for computer graphics services, which are developing on cable and satellite supplies: these services cannot be considered as online communication services within the meaning of the draft legislation, since they are technically similar to diffusion services; nor can they be qualified as television services, insofar as they do not include moving images.
As a result of the August 1, 2000 law's abrogation of Article 43(1) of the 1986 law, these services are no longer subject to the minimum obligations they once had: declaration to the French Superior Audiovisual Council, the obligation to present advertising messages as such, identification of the publisher and indication of the rate if the service is pay-per-view.
However, these services are summoned to undergo major development and to be increasingly present in cable and satellite supplies, as a complement to radio and television services. It would therefore be justified for them to be subject to a minimum framework and control by the French Superior Audiovisual Council.

Article 13: exercise of the right of reply
Article 13 of the draft legislation introduces an article 43-10-1 into the 1986 law on the right of reply in online communication services.
In the Conseil's view, the broadcasting method specific to online communication services, and in particular the continuous nature of the services made available to the public, justifies an adjustment to the right of reply scheme made provision for all audiovisual communication services under article 6 of the 1982 law. In this respect, he ruled that the deadline for requesting a right of reply on an online communication service should be three months from the date when the message ceases to be made available to the public.
It also sees merit in aligning the scope of the right of reply for online services with that applicable to the print media, i.e. the fact of having been "named or designated", whereas the exercise of this right is limited, in the audiovisual sector, to cases of injury to honor or reputation.
However, he believes that the draft legislation should make it clearer that the application of this specific regime is exclusive of the application of the general regime provided by the 1982 law.
He also points out that the difference between the rules governing the right of reply on radio and television, on the one hand, and on online communication services, on the other, could give rise to difficulties for radio and television services accessible via different media.
In addition, a recent ruling by the final court of appeal (Cass. Crim. 00-83004 of January 30, 2001) equated the Internet with a press medium for the purposes of the statute of limitations on defamation, which is now three months from the date of the first act of publication. However, the draft legislation sets a time limit for the right of reply of up to three months from the date of withdrawal of the message. The Council therefore suggests that the time limits applicable to defamation and the right of reply be brought into line with each other.

Articles 14 and 16: Operator liability
The draft legislation amends the liability regime for hosting providers, access providers and telecoms operators in line with the provisions of the E-Commerce Directive. However, it only imperfectly transposes articles 12 to 15 of this directive, which ensure a balanced arbitration between the interests involved. To ensure that rights holders in works distributed via online services do not benefit from a less protective regime than that provided for in the directive, the Council would like the draft legislation to make provision for the full transposition of the liability regime for intermediary service providers provided for in articles 12 to 15 of the directive.

Article 25: Online advertising
The Conseil had deplored the fact that the obligation to present advertising messages as such, laid down in article 43 of the 1986 law, was no longer applicable to audiovisuel communication services other than radio or television, even though it is a fully legitimate minimum obligation.
The draft legislation reinstates this obligation for online communication services (article 43-10-2 of the 1986 law, introduced by article 25 of the draft legislation).
The French Superior Audiovisual Council welcomes this in principle, although it is aware that the practical implementation of this obligation imposed on websites is likely to suffer from difficulties, and that its scope is limited by the absence of legal sanctions (whereas such sanctions exist for the written press).
In addition to the presentation of advertising as such, the Council considers that, in order to achieve the objective of a better separation between editorial content and advertising, provision could be made for clear identification of the natural or legal person expressing himself or in whose name the author of the content is speaking.
Finally, he regrets that the obligation to present advertising as such has not been reinstated for audiovisual communication services that are neither online communication services, nor radio or television services (notably computer graphics services).

Article 27: Electronic contracts
Article 27 regulates the formation of electronic contracts, with the aim of protecting consumers.
However, the scope of this provision appears to cover online services whose very interest lies in rapid execution; this is the case, for example, with pay-per-view services on television and, on the Internet, with video-on-demand or documents accessible in return for payment.
The formalities required for such services may seem unnecessarily burdensome when an initial subscription contract provides the framework for subsequent orders for individual services.

II - Diffusion networks

Contrary to what was announced in the autumn 1999 policy paper, the draft legislation does not make provision for harmonizing the legal regimes of cable networks and telecommunications networks, even though such harmonization would appear to be essential. On the other hand, it does include provisions concerning the role of local authorities in telecommunications infrastructures, which, subject to clarification, seem entirely appropriate. Lastly, it establishes a new regime for "satellite schemes", which in no way involves the French Superior Audiovisual Council.

Harmonizing legal regimes for wireline networks

The government's policy paper made provision for the harmonization of the legal regimes applicable, on the one hand, to cable networks and, on the other, to wireline telecommunications networks.
This harmonization seemed perfectly justified in view of the convergence of infrastructures and the risks of circumventing the cable network regime, which could reduce the French Superior Audiovisual Council's scope of intervention and create inequalities of treatment between operators.
At present, there is nothing to prevent a telecommunications operator from setting up a wireline network under the regime provided for by the French Post and Telecommunications Code, and then using this network to operate a radio and television supply outside the obligations laid down by the 1986 law.
The French Superior Audiovisual Council has repeatedly come out in favor of this harmonization. It therefore regrets that the draft legislation does not make provision for it.

Article 30: Role of local authorities
The French Superior Audiovisual Council believes that the development of local terrestrial television services should be encouraged; to this end, it deems it essential that local authorities be authorized to promote the establishment of infrastructures for the diffusion of terrestrial television services, and to offer their use on advantageous terms.
Article 30 of the draft legislation seems to meet this expectation, as it authorizes local authorities to "create infrastructures designed to support telecommunications networks".
The notion of telecommunications network, as defined in article L. 32 of the French Post and Telecommunications Code, would appear to include networks used for the diffusion or distribution of audiovisuel communication services.
Provided this interpretation is confirmed, and the wording amended to remove any ambiguity as to the nature of the networks in question, the Conseil is fully in favor of this provision, which it had been summoning.

Articles 31 to 33: "satellite schemes".
Articles 31 to 33 of the draft legislation set out the rules applicable to satellite schemes, and make them subject to authorization by the minister in charge of telecommunications.
The French Superior Audiovisual Council considers that it should be involved in the authorization proceedings as soon as satellite frequencies for radio broadcasting and satellite television are concerned, and that, at the very least, a link with the provisions of article 33-2 of the law of September 30, 1986 is essential.

Conclusion

Finally, the Council notes that the January 17, 2002 deadline set for the transposition of the e-commerce directive into national law imposes an extremely restrictive timetable for the examination and adoption by Parliament of the draft legislation on the information society.