DIGITAL ECONOMY BILL

On February 26, 2003, the French Parliament (the Assembl?e Nationale) voted a bill on the digital economy which aims at strengthening the freedom of communication and the users' trust in e-commerce and which also aims at fighting against unsolicited commercial communications and cyber-criminality.

The bill implements in particular the E.U. e-commerce Directive dated June 8, 2000. The bill addresses various major issues in the field of Internet communications and information technologies, among which :

Spamming : the bill provides that commercial communications via e-mail is prohibited unless the Internet user has given his/her prior consent (opt-in). However, this only applies to individuals, as opposed to companies which are registered.

Encryption : the bill provides for a liberalization of the use of encryption tools, whereby the supply and the transfer (import and export) of encryption tools are only subject to an obligation of prior declaration to the French authorities. In case of a violation of the applicable rules, the sanctions provided by the bill are stricter than those which were previously applicable.

Liability of online merchants : online merchants will be subject to a "global liability", i.e., they will have to ensure that no problems arise at any stage, from the order until the delivery of the goods or services. A one-year period of time should be granted in order for the online merchants to adapt their practices to these new requirements.

Liability of Internet service providers (access and hosting providers) : the liability of such providers may be sought as soon as they have "effective knowledge of the illicit nature of online materials". They will then have to react promptly in order to remove these materials or make it impossible to access such materials. Moreover, a much criticized provision of the bill states that it will be possible for a judge to order that access to the Internet be filtered, for instance in the case of copyright infringement. The AFA (Association Fran?aise des Fournisseurs d'Acc?s et de Services Internet, the French association of Internet access and service providers) considers that this provision of the bill is pointless because, at the present time, no technology allows such filtering operations.

Control body : the bill considers that online public communication belongs to the category of audio-visual communication and that, as such, it should be controlled by the CSA (Conseil Sup?rieur de l'Audiovisuel) which already deals with all television- and radio-related matters.

It is important to note that this is a bill, which still has to be voted by the S?nat before it becomes effective, and that a number of amendments are expected from the representatives of the economic sectors involved. However, it is likely that the S?nat will accept to pass the law almost as it was voted by the Assembl?e Nationale. According to the schedule, the bill should be presented to the S?nat in April 2003 and is expected to be passed, and thus become enforceable, by the summer.