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Referral To The Constitutional Council Dated May 19, 2004, Presented By More Than Sixty Members, Pursuant To Article 61, Paragraph 3, Of The Constitution, And Referred In Decision No. 2004-496 Dc

Original Language Title: Saisine du Conseil constitutionnel en date du 19 mai 2004 présentée par plus de soixante députés, en application de l'article 61, alinéa 3, de la Constitution, et visée dans la décision n° 2004-496 DC

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JORF #143 of June 22, 2004 page 11189
text #5




Reference to the Constitutional Council of 19 May 2004 by more than 60 Members, pursuant to Article#039(3) of the Constitution, as referred to in Decision No. 2004-496 DC

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CONFIVANCE ACT
IN THE DIGITAL ECONOMY


Mr. Chairman, ladies and gentlemen of the Constitutional Council, we have the honour to refer to your review the entire law for confidence in the digital economy, And in particular with regard to Articles 1 and 6 of the law.


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At the outset, the authors of the reference wish to recall their deep commitment to the idea of conciliation Balanced between the development of the Internet and digital networks, Formidable opportunities for freedom of expression and exchanges between individuals, and the protection of other fundamental rights and freedoms. In this respect, the incessant struggle against content that is prejudicial to human dignity, on the one hand, and the protection of intellectual property rights guaranteeing a society of culture, on the other, are two particularly objectives Important. The potential of the Internet cannot, in any way, justify the emancipation of our legal framework and republican principles. However, any disproportionate infringement of freedom of communication, privacy, or ignorance of the judge's role, could only lead to the questioning of the pluralism of ideas and opinions and the freedom of thought of each The foundation of democracy.
It is therefore appropriate to show the formidable modernity of the Declaration of the Rights of Man and the Citizen of 1789 as our Constitution to respond to the challenges posed by the technique.


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I. -Article 1 of the law


§ IV of the last paragraph of Article 1 of the law criticised defines " Electronic mail [as] any message, in the form of text, voice, sound or image, sent by a public communication network, stored on a network server or in the recipient's terminal equipment, until the recipient
While the original version of this provision included the express reference to the concept of private correspondence, an amendment of parliamentary origin deleted this clarification, however important from the point of view of the Legal consequences are attached.
As such, it turns out that this Definition of electronic mail reveals, first, a violation of Article 34 of the Constitution and thus the negative incompetence of the legislator (I-1) and, second, ignorance of the right to privacy and freedom of Communication (I-2).
I-1. The violation of article 34 of the Constitution:
Article 34 C provides that the law lays down the rules on civil rights and the fundamental guarantees given to citizens for the exercise of civil liberties. However, it is undeniable that, among the fundamental freedoms of each individual, are both the freedom to communicate privately and the right to privacy.
Cest and you do not hesitate to censor, on the ground of such Negative incompetence, too vague or incomplete provisions since these fundamental rights and freedoms are in question (Decisions No. 96-378 DC of 23 July 1996, No. 2000-433 DC of 27 July 2000)
This grievance is particularly well founded.
By deleting any reference to the concept of Private correspondence in the context of the definition given for electronic mail, the legislator opens the possibility of undifferentiated control and without a predetermined limit on all exchanges made on a private basis between persons
Or, it is important to remember that the most assertive judicial jurisprudence regards e-mail as, unless proven otherwise, a private correspondence. The Court of Cassation (Cass., 2 October 2001, Nikon/F. Onol). It is a similar solution in criminal matters that the Tribunal de grande instance de Paris had already adopted, stating that " The term "correspondence refers to any written relationship between two identifiable persons, whether they are letters, messages or closed or open folds" (Paris, 17th Correctional Chamber, 2 November 2000)
Echoes an earlier case-law concerning telephone communications and illustrated by the Court of Appeal of Metz that " In order for the communication to be regarded as private, it is necessary not only that the call be personal, free and private, but also that the whole of the telephone exchange is ', that is, it does not show the correspondents' No positive and formal will to carry an act of communication to the public " (Metz, July 18, 1980).
It is clear that such a qualification is equally valid for e-mails and the Internet.
This is still the approach set out in the circular of 17 February 1988. Application of the Act of 30 September 1986 and affirming that there is a private correspondence " Where the message is exclusively for one or more persons, whether physical or legal, determined or individualised ".
The importance of the qualification of private correspondence is, of course, fundamental, since in its absence All e-mails would be subject to all the more or less legitimate intrusions and would, in particular, be subtracted from the privacy and confidentiality regime of private correspondence.
In particular, would not apply Article 1 of the Act of 10 July 1991 having that " The secrecy of correspondence issued by the telecommunications channel is guaranteed by law. Such secrecy may be infringed only by the public authority, in the cases of the public interest required by law and within the limits laid down by law. "
In this regard, no justification can legitimise that personal correspondence exchanged for private correspondence does not enjoy the same guarantees as other forms of privacy exchanges.
The negative incompetence of the legislator is all the more obvious since the preceding paragraph of the same § IV of Article 1 of the criticised law defines communication to the public online by excluding from its acceptance any private
. Said, to follow, as it is, Article 1 of the law criticised, there would be a regime The exclusive online public communication of the concept of private correspondence, which is logical, and a separate electronic mail system for both online public communication and private correspondence. Under these conditions, it should be deduced that there is no exchange of strictly personal data via digital networks, and that privacy and freedom of communication are subject to all the sometimes poor winds of risk Unjustified intrusions.
The specificity of the new technical means of communication poses, no one ignores, particular issues and difficulties. It would be futile to deny that. However, technological developments cannot lead to disruption of the most established legal categories and certainly not to deny fundamental rights and freedoms.
It is clear that the definition criticised is too vague And, in any event, does not provide any of the necessary guarantees for the rights and freedoms which fall within the terms of Article 34 of the Constitution of the legislature's exclusive
. On the violation of Article 2 of the Declaration of 1789 guaranteeing the right to privacy and Article 11 of the same declaration enshrining freedom of communication:
It is hardly necessary to recall how much your case-law is intended to protect the privacy of each individual, guaranteed under Article 2 of the 1789 Declaration (Decision No. 97-389 DC of 22 January 1997, Decision No. 99-416 DC of 23 July 1999) and the freedom of communication proclaimed by Article 11 of the same founding text of our democracy (Decision No. 84-181 DC of 10 October 1984).
The contested article paves the way for a dramatic questioning of the right to Each individual to retain a share of privacy and privacy in the personal context of the Exchanges, written or visual, that he or she wishes to maintain with others. As has been abundantly demonstrated, the definition adopted by § IV of Article 1 of the Law has the effect of removing all e-mails from the scope of protection due to any private correspondence, including that of the secret attached thereto. However, privacy includes, in essence, the right to communicate with others safely and without anyone interfering in this exchange.
Admittedly, and the authors of the reference do not deny it, it may be necessary to reconcile This fundamental right with other rights and principles of equal constitutional values, and to provide, for this purpose, mechanisms to limit this right to the absolute protection of private
. Such a fundamental right may only be strictly proportionate and directed towards A perfectly justified purpose, exactly identified and circumscribed. It is in such a framework that the law allows the public authority through the procedures and circumstances established by the law and, for a large part of the assumptions, under the strict control of the judicial authority, to intercept communications from A private nature protected by the secrecy of correspondence.
This is, in particular, the case provided for by the law of 10 July 1991.
In this case, the vague and imprecise definition, as well as the absence of guarantees, can only lead to the E-mailing the risk of people trespassing Whether the message is exclusively for one or more persons, whether physical or legal, determined or individualised.
Such a consequence directly related to this definition is clearly inadmissible to the The right to privacy and the freedom of communication between natural and legal persons.
In reality, the question is not that of interceptions of communication for the purpose of maintaining public order served by instruments Appropriate legal provisions. It is, in fact, to open up a weakening of the very notion of private correspondence in order to trace the exchange of all illegal files. In disqualifying electronic mail, it is intended to circumvent the constitutional requirements, including the secrecy of privacy-related correspondence, protecting private correspondence.
Of course, the Internet, symbol Immense potential of digital networks, allows through a priori private correspondence to circulate immaterial creations protected under copyright but without respecting the exclusive power of the creator, and of his Entitled, on his work. It must be said radically: the protection of culture and artistic content deserves the greatest attention and appropriate measures. The authors of the referral intend to continue to work in this direction as they have always done. However, the defence of intellectual property should not lead to disproportionate rules with regard to constitutionally protected rights and freedoms.
Especially when legitimate will to prevent the exchange of files Illegal carriers of cultural content protected by intellectual property rights can be satisfied without negating the private nature of the majority of e-mails.
This point is obviously very central in the Perspective of the law for confidence in the digital economy.
(i) Indeed, a service which broadcasts to undifferentiated people messages whose content cannot, by definition, be personal cannot be regarded as broadcasting private correspondence (see in this sense: Cass. , 25 October 2000). Since the e-mail in question is not sent because of the identity of one or more addressees, one finds the qualification of communication online to the public. The fight against piracy of creative works protected by copyright can then find the legal resources needed to act in the respect of rights and freedoms, including freedom of communication.
A distinction that can Then be established between private correspondence and mailings sent to a mailing list, like a mailing list, or discussion forums.
However, in this regard it will be recalled that Article 3 of Law No. 86-1067 of 30 September 1986 on freedom of communication indicates that " The secrecy of the choices made by persons among the telecommunications services and among the programmes offered by them shall not be lifted without their consent. '.
(ii) It should also be added that the Directive of 22 May 2001 tending to The harmonisation of certain copyrights, which is the subject of a draft transposition law to be examined by Parliament, contains provisions which will satisfy the essential need for the protection of works circulating on the The Internet. Thus, the Directive provides for technical mechanisms to prevent the illegal copying of works covered by copyright; the circumvention of those measures is a criminal offence. In these circumstances, and subject to the proviso that this draft law of transposition satisfies the constitutional rights, it will be possible for the right holders to upset, through appropriate technological processes, the exchange of illegal files Intended to infringe copyright.
But if this evolution, in itself already very intrusive, had to be combined with a negation of any character of the private correspondence of the e-mail, then it would have to be feared that the Internet Become a flourishing space for all Big Brothers, whether patted or not, Amateurs or professionals.
(iii) It will be added that the words completing the paragraph criticized " , until the latter retrieves it " Increase the risks and fears for privacy and freedom of communication.
Such a concept of random e-mail protected by the secrecy of correspondence leaves the thought behind. Should we deduce that any e-mail waiting for its addressee, precisely identified, to open it, on the return of its working day or holiday, is accessible by a third party with no limits and for any reason? By analogy, should it be accepted that the letters of paper left in a mailbox or in the remaining post are not covered by the secrecy of the correspondence?
It is not irrelevant to recall that section 226-15 of the Code Penal Code punishes one year in prison and a fine " The fact, committed in bad faith, of opening, deleting, delaying or diverting connections to or from destination to third parties or fraudulently taking knowledge thereof. "
It is also important to note that The IP address of each person using the Internet, i.e. its connection to the network, is considered both by the CNIL and by the Article 29 Working Party set up under the 1995 Directive (" Respect for privacy on the Internet. -An integrated European approach to online data protection ", 21 November 2000) or the International Group on Data Protection in Telecommunications (31st meeting of the Group, 26 and 27 March 2002, Auckland), as Personal character to be protected by the rules applicable to the matter.
It is clear that the definition in question, incomplete, allows the most spectacular excesses to the point of risking, paradoxically, to breach any confidence in The digital environment and to adversely affect the right to the Privacy and freedom of communication.
Censorship is certain.


II. -Section 6 of the Act


II-1. On the responsibility of providers:
This Article 6 provides that natural or legal persons who provide, even free of charge, for the making available to the public by means of communication to the public online, the storage of signals, writings, images, sounds or Messages of any kind provided by recipients of such services will be able to see their civil and criminal liabilities incurred as a result of activities or information stored at the request of a recipient of those services, if they had Actual knowledge of their unlawful nature or facts and circumstances Or if, at the time of such knowledge, they did not act promptly to withdraw the data or make its access impossible.
Information of the unlawful nature is presumed to be acquired by the provider If that character has been notified to it in accordance with a procedure and forms determined by law. On the other hand, the fact of denouncing such content in the knowledge that it is lawful for the purpose of obtaining the withdrawal or the cessation of broadcasting is penalised.
It follows that this provision places a burden on technical providers on the Risk of liability, whether criminal or civil, in the event of the dissemination of illegal information on a website which they confine themselves to hosting or which they allow access without in order to contain the content. It is therefore likely, or even inevitable in spite of the timid beginnings of supervision, that, applying a kind of precautionary principle, those hosters cease to allow access to the public of information as soon as a natural person or They will have notified them of the illegal nature of the matter, without verifying the validity of the application or taking the effective time to ensure it.
This issue is not new. It is at the centre of many questions about the balance between freedom of communication and expression and the protection of other rights and freedoms of equal constitutional value. It also refers to the effectiveness and constitutionality of the relevant legal mechanisms to achieve this balance.
You have already been referred to this question twice. On both occasions, you have censored the devices developed by the legislator (Decisions No. 96-378 DC of 23 July 1996, n ° 2000-433 DC of 27 July 2000) on the ground of violation of article 34 of the Constitution
The same criticism (II-1.1) and, moreover, disregard Article 11 of the Declaration of 1789 (II-1.2), Article 66 of the Constitution and together Article 16 of the 1789 Declaration and the right to a fair trial (II-1.3)
II-1.1. On the violation of Article 34 of the Constitution and together Articles 8 and 9 of the 1789 Declaration:
Admittedly, the criticised mechanism is presented as a transposition of the European Directive of 8 June 2000 on electronic commerce. In addition, the scheme set up is presented in a favourable form for the claimants to the extent that the principle is that of the exclusion of their liability, unless they do not Promptly " To a notification, a kind of non-judicial injunction, addressed to them by a third party.
However, it must be noted that the competence reserved for the legislature by Article 34 of the Constitution in the field of civil liberties and Determination of crimes and offences is not satisfied by the provisions at issue.
The conditions for the engagement of civil and criminal liability remain uncertain and are not sufficiently detailed.
(i) On the one hand, the elements Under the prior notification necessary to ensure that the facts Are considered to be brought to the attention of the claimant concerned do not permit the characterization of the intentional element of the offence. Now, as you have said, " In accordance with the combined provisions of Article 9 of the 1789 Declaration on the presumption of innocence and Article 8 of the same declaration, the definition of a criminal offence must include, in addition to the material element, The moral element, whether intentional or not, of the latter (Decision No 99-411 DC of 16 June 1999).
But none of this is provided for in this case.
The indication of the alleged facts and of the legal justification cannot seriously suffice to consider The claimant is criminally liable on the basis of his forbearance, A refusal, to withdraw the contents. The provider concerned may well consider that the content in question, criticised by the notification, does not constitute a breach of the alleged rule. Its appreciation may well be the result of a divergent intellectual approach. The rule of law sometimes implies that two degrees of jurisdiction plus a review of cassation intervene to ensure that the correct legal qualification is certain. Can one decently require a private person to be certain of his or her judgment? For obvious situations, how many contentious cases will appear? For example, how to assess promptly whether the work is in the public domain or remains covered by copyright? Accordingly, it would be disproportionate to consider that the refusal to follow such a notification should, as such, be such as to establish the criminal or civil liability of the host.
(ii) On the other hand, and this applies equally to the Civil liability as for criminal liability, the concept of " Prompt action " Leaves in uncertainty. It may vary according to the nature of the content, according to the complexity of the facts complained of, according to the means and nature of the structure of the provider, according to the number of notifications sent and in process, ...
It is seen, such
this respect, the fact that the directive of 8 June 2000 envisages such a mechanism of liability is completely indifferent. As with all Community directives, this is an objective to be achieved in accordance with the constitutional law of each Member State. If national law already makes it possible to meet this objective, there is no need to add to the positive law, especially if this modification fails to recognise fundamental rights and freedoms. In the present case, however, whether it is criminal liability or civil liability, existing procedures such as the case-law show that the responsibility of the claimant may be incurred as soon as he has continued to host a content
From this leader, censorship is already incurred.
II-1.2. On the violation of Article 11 of the 1789 Declaration:
The contested mechanism thus leads to the transfer to technical mediaries the power to remove, not, data put online by a third party or to make it impossible to access The basis of a mere presumption of wrongfulness.
At this moment, it is important to note that it is the freedom to communicate ideas and opinions which is under threat, the subjective appreciation of a third party which can lead to an impossibility of Dissemination and expression. More seriously, it points out that this power to prevent the exercise of such freedom belongs to a duo of legal or physical persons, private or public: a third party who denounces and a claimant who executes. Duo is unbalanced since the second risk is his responsibility if he does not defend the first. Freedom of communication and expression becomes hostage to this report of forces at the known end.
(i) This mechanism directly defies your case law by introducing a device that produces effects equivalent to a regime Prior authorisation for freedom of communication.
The essential character of this freedom has already led to the judgment that " The free communication of thoughts and opinions, guaranteed by Article 11 of the Declaration of the Rights of Man and of the Citizen of 1789, would not be effective if the audience to whom these daily newspapers were addressed was not able to dispose of a number Sufficient publications of different trends and characters; ultimately the objective to be achieved is that the readers who are among the essential recipients of the freedom proclaimed by Article 11 of the 1789 Declaration are to be Even exercise their free choice without private interests or public authorities May substitute their own decisions and may be the subject of a contract." (Decision 84-181 DC of 10 October 1984).
It is on the basis of this reasoning that you have invalidated several provisions of the 1984 Press Act which entrusted to a committee, yet of an administrative and independent nature, Control of concentrations in this sector with the power to make decisions that are immediately enforceable.
Here, the law that has been criticized goes further to the extent that the ability to interrupt the dissemination of content belongs to Private individuals who, in a way, will have power
This is to say that the lack of knowledge of section 11 is blatant.
Because it is not necessary to be a great clerk to imagine what the situation of a claimant will be with the repeated requests for Several major industrial or financial groups, regularly notifying that such or such content seems to infringe, for example, their intellectual property rights, trademarks, designs, models, copyrights, patents ... The risk is that of the hypothesis censored by you for the protection of freedom of expression and of the communication of ideas and opinions in the face of the power of certain private
. Those legal persons who will establish the criteria of what may or may not be disseminated on the Internet.
(ii) The authors of the reference do not, of course, ignore the fact that freedom of communication must, in certain circumstances, be reconciled with others Rights and freedoms.
More than other means of communication, the Internet Allows for violations of human dignity or intellectual property rights. There is unanimity to say that the fight against these unacceptable content which offends our souls and conscience or our conception of a culture society must be without weakness. It must not, however, lead to the excessive weakening of freedom of expression and communication.
It is foreseen in the criticised text that the rules should be adopted as soon as possible. Such illegal content:
, first of all, to the fight so important against the content of the crimes against humanity, anti-Semitism, racism, or paedophilia, the criticised law provided for a particular mechanism, paradoxically less Binding that the one currently criticised;
-concerning, then, the necessary fight against piracy, the proposed device is disproportionate to the intended purpose, since § 8 of the same law organises, expressis verbis, a Procedure entrusting the judicial authority with competence to Or on request any measure to prevent or prevent damage caused by online communication service content.
Similarly, Article L. 332-1 of the Intellectual Property Code is supplemented by Article 8 of the Law To strengthen the powers of the President of the High Court to act by way of the order on motion under the "saisie-contrefaçon" procedure.
The protection of content is widely used by different parties. Mechanisms that build on the role of the judicial judge while allowing for action Quickly. As has been explained in the parliamentary debates, it is appropriate to react quickly in this matter. The judge of the application or the application shall be the judge of the evidence as well as of the urgency. No private person, however well informed, can substitute for this office of the judicial authority.
As for the possible search for the liability of the provider, it may, as a result of the urgent judicial action, be Where appropriate, in the field of Article 1382 of the Civil Code, in civil matters, or on the ground of complicity, recel or any other classical qualification of our criminal law.
In other words, the conciliation between freedom Of communication and expression and other rights and freedoms is satisfied by Our current legal and judicial system improved by amendments to give new powers to act as a matter of urgency to the judicial judge.
In the end, it appears that the criticised mechanism does not contribute to the objective pursued by the Contributing to such a serious attack on freedom of communication and expression.
II-1.3. On the violation of Article 66 of the Constitution and Article 16 of the 1789 Declaration and together the rights of the defence:
The previous objections highlight, moreover, the fact that the serious infringement of this freedom can be Committed to the deviation of the judicial authority and its role as guardian of individual liberty (i) and out of any right to an effective remedy and without respect for the rights of the defence (ii).
(i) Of course, as we have seen, the use of the judge for To put an end to damage caused by content on the Internet is always possible. This proves, in addition, that third parties will now have the choice between the courts and the expedient route of private justice. The same rights and freedoms are involved, but third parties can choose the level of guarantees that they can benefit from!
In truth, such an approach is quite unprecedented. In the press, for example, it is assumed that the public authority cannot carry out a newspaper seizure on its own and yet the public order is at issue, except for the criticism of the de facto route (TC 8 April 1935). Action française, GAJA, 12th edition, No. 53). On the other hand, the rule, including to prevent attacks on honour or privacy, remains the appeal to the judge, again, of the references.
In the matter of individual freedom, it is common ground that the judicial authority retains its role as a Guardian to the point that the legislature must give the judge effective control of the necessity of any measure which would impair that freedom and the power to terminate it at any time (Decision No. 84-184 DC of 29 December 1984, § 34)
Solution is all the more necessary if you bring Article 66 of your Constitution closer to your Case law on the guarantee of Article 11 of the aforementioned Declaration of 1789 (Decision of 10 October 1984).

It is therefore not constitutionally possible to provide that a third party can limit the expression of a person without Prior intervention by the judicial judge. All the more so as this limitation is made without the parties concerned, the technical provider and the editorial head of the content can be heard in advance of the withdrawal.
(ii) You are, in this respect, always attentive to what each Benefit from the right to an effective remedy and the right to a fair trial including the rights of the defence and respect for the principle of contradiction (Decision No. 99-416 DC of 23 July 1999)
Concern not only the penalties imposed by the law-enforcement courts but extend to any punishment having the character of a punishment, even if the legislature has left it to an authority of a non-judicial nature " (Decision No. 88-248 DC of 17 January 1989).
In this case, the notification of objections, prior to the withdrawal of the disputed content, is not followed by any possibility of defence or contradiction. Not only does the claimant have no opportunity to be heard, but, in addition, the person responsible for the content, who is not the recipient of the notification, cannot be heard from the provider or the third party responsible for the notification.
It succeeds in depriving a person, whether physical or moral, of the exercise of constitutionally guaranteed liberty.
The unconstitutionality is all the more serious as the legal situation and the extent of the rights and guarantees of the Providers and content managers will depend on the arbitrary choice made by
is in vain that the existence of a criminal procedure for abusive notification, as provided for in point 4 of Article 6 (I) of Article 6, should be used. That procedure cannot be regarded as an effective remedy, since it does not open the possibility for the provider or responsible editorial to allow the immediate reinstatement of the criticised content. However, as far as fundamental freedom is concerned, the right to appeal must be as effective as possible and extend to the restoration of constitutional
. However, be regarded as offering an effective remedy against a decision immediately enforceable and depriving a person of the exercise of constitutionally protected freedom.
Any other would have been the situation if the prior procedure of Notification of the alleged acts had been coupled with the intervention of the Judge, in accordance with an appropriate emergency procedure. In this case, the speed of enforcement and the guarantees of rights would have been ensured.
But, as it stands, the criticised provision is simply contrary to Article 16 of the 1789 Declaration and to the fundamental principles recognised By the laws of the Republic.
Censorship is inevitable and, fortunately, will in no way prejudice the protection of democratic values and the rights of authors that some people unfortunately want to challenge through the Internet
II-2. Under § IV and V of Article 6 of the Law:
Article 2 § IV of the draft law provides that any person appointed or designated in an online communication service may require a right of reply if his or her application is " Submitted within a period of three months from the date on which the provision of the message justifying this application ceases to be made available to the public ".
§ IV bis provides that press offences committed solely on the computer media shall benefit A specific limitation period, since the period of three months beyond which public action and civil action are prescribed is short " As from the date on which the making available to the public of the message likely to trigger one of these actions is discontinued. "
The Government has tried to justify this solution by claiming that the messages disseminated on the Internet benefit Stronger, or even increasing, advertising than messages broadcast on paper or audiovisual media, the latter being " Perishable or even stealth ". He therefore considered it necessary to extend the limitation period for messages that were exclusively posted on the Internet.
This provision, which has provoked many hostile reactions, infringes the principle of equality before the law
Present, the Court of Cassation had taken care to judge, on the visa of Article 65 of the Law of 29 July 1881, " Where proceedings for one of the offences provided for by the aforementioned Act are instituted as a result of a posting on the Internet, a message appearing on a site, the starting point of the limitation period for the public action provided for by the Article 65 of the Law of 29 July 1881 must be fixed at the date of the first act of publication: that this date is the date on which the message was first made available to users. (Crim. November 27, 2001, J.-L. C. /public prosecutor, LDH, MRAP, UEJF).
As regards the purpose of the law, as in the general interest, there is no reason to justify such a difference in the treatment of different media and editorial officials.
The device Criticised in fact the demonstration by its own incoherence.
Indeed, while this derogating mechanism is justified by the fact that the publishing of a publication increases its advertising, the paragraphs criticized uphold the common law When the article in question is distributed by way of paper and via the Internet.
In other words, a content that has a dual circulation and thus a dual audience, both in time and space, is subject to the statutory limitation period of the 1881 law. On the other hand, the content scattered over the Internet, which has a smaller circulation, is subject to an extended period of time.
Equality is broken for exactly invert purposes and the general interest is completely ignored by this Mechanism.
The response to an important question-the permanent disentitlement of messages that are seriously contrary to public order-is clearly inappropriate and unconstitutional.
It is the feeling that was expressed in the debates In the Senate, for example, Mr. J.-J. Hyest, though a member of the majority.
It is the same doubt that the author of the critical amendment now openly expresses, and still recently in the press (see his online interview for ZDNet, Tuesday, May 11, 2004, and the article in Release, Friday, May 14, 2004).
Censorship is certain.
(List of signatories: See decision No. 2004-496 DC.)


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