The Digital Economy Act

The Digital Economy Law

September 15, 2004

** Source** :

http://www.legifrance.gouv.fr/WAspad/UnTexteDeJorf?numjo=ECOX0200175L

Journal Officiel n° 143 of June 22, 2004, page 11168

text n° 2

LAWS

Law n° 2004-575 of June 21, 2004 for Trust in the Digital Economy (1)

NOR: ECOX0200175L

The National Assembly and the Senate have adopted,

Considering the decision of the Constitutional Council n° 2004-496 DC of June 10, 2004;

The President of the Republic promulgates the law whose text follows:

TITLE I

ON THE FREEDOM OF ONLINE COMMUNICATION

Chapter I

Online public communication

Article 1

I. - Article 1 of the law n° 86-1067 of September 30, 1986 concerning freedom of communication is thus worded:

"Art. 1. - Public electronic communication is free.

"The exercise of this freedom may only be limited to the extent required, on one hand, by respect for the dignity of the human person, for the freedom and property of others, for the pluralist nature of the expression of ideas and opinions,

and, on the other hand,

by the protection of public order,

by the needs of national defense,

by the requirements of public service, by the technical constraints inherent in the means of communication,

as well as by the need, for audiovisual services, to develop audiovisual production.

"Audiovisual services include the audiovisual communication services as defined in article 2 as well as the entire set of services providing the public or a category of the public with audiovisual, cinematographic or sound works, regardless of the technical means of this provision."

II. - Article 2 of the aforementioned law n° 86-1067 of September 30, 1986 is thus worded:

"Art. 2. - Electronic communications refer to the transmission, reception or emission of signs, signals, writings, images or sounds by electromagnetic means.

"Public electronic communication refers to the provision to the public or to categories of the public, by an electronic communication method, of signs, signals, writings, images, sounds or messages of any nature that do not have the character of private correspondence.

"Audiovisual communication refers to the public communication of radio or television services, regardless of the means of provision to the public, as well as any public electronic communication of services other than radio and television and not falling under online public communication as defined in article 1 of the law n° 2004-575 of June 21, 2004 for trust in the digital economy.

(in other words, reaffirmation of a monopoly)

"Any service of television is considered as a service of public electronic communication intended to be received simultaneously by the entire public

or by a category of the public

and whose main program is composed of an ordered sequence of broadcasts containing images and sounds.

(same remark)

"Any service of radio is considered as a service of public electronic communication intended to be received simultaneously by the entire public or by a category of the public and whose main program is composed of an ordered sequence of broadcasts containing sounds."

III. - After article 3 of the aforementioned law n° 86-1067 of September 30, 1986, an article 3-1 is inserted as follows:

"Art. 3-1. - The High Council of Audiovisual, an independent authority, guarantees the exercise of the freedom of audiovisual communication in radio and television by any electronic communication method, under the conditions defined by this law.

"It ensures equal treatment; it guarantees the independence and impartiality of the public radio and television sector; it ensures the promotion of free competition and the establishment of non-discriminatory relationships between publishers and distributors of services; it ensures the quality and diversity of programs, the development of national audiovisual production and creation, as well as the defense and illustration of the French language and culture. It may make proposals for the improvement of program quality.

"The council may address to radio and television service publishers and distributors as well as to the publishers mentioned in article 30-5, recommendations regarding the respect of the principles stated in this law. These recommendations are published in the Official Journal of the French Republic."

(The powers without control, granted to the nine "sages" of the CSA, appointed by the current power, have already been mentioned on this site)

IV. - As stated in article 1 of the law n° 86-1067 of September 30, 1986 concerning freedom of communication, public electronic communication is free.

(under the condition of being "medially correct")

The exercise of this freedom may only be limited to the extent required, on one hand, by respect for the dignity of the human person, for the freedom and property of others, for the pluralist nature of the expression of ideas and opinions and, on the other hand,

by the protection of public order, by the needs of national defense,

by the requirements of public service, by the technical constraints inherent in the means of communication, as well as by the need, for audiovisual services, to develop audiovisual production.

Public electronic communication refers to the provision to the public or to categories of the public, by an electronic communication method, of signs, signals, writings, images, sounds or messages of any nature that do not have the character of private correspondence.

Public online communication refers to the transmission, on an individual request, of digital data that do not have the character of private correspondence, by an electronic communication method allowing a reciprocal exchange of information between the sender and the receiver.

(This part of the text is ambiguous. A person who asks another, who runs a website, to send them a document by email, does that constitute an "individual request".)

Electronic mail refers to 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 terminal equipment of the recipient, until the latter retrieves it.

Article 2

I. - In articles 93, 93-2 and 93-3 of the law n° 82-652 of July 29, 1982 on audiovisual communication, the words: "audiovisual communication" are replaced by the words: "public electronic communication".

II. - In article 23 of the law of July 29, 1881 on press freedom, the words: "audiovisual communication" are replaced by the words: "public electronic communication".

III. - In articles 131-10, 131-35 and 131-39 of the Penal Code, the words: "audiovisual communication" are replaced by the words: "public electronic communication".

IV. - In articles 177-1 and 212-1 of the Code of Criminal Procedure, the words: "audiovisual communication" are replaced by the words: "public electronic communication".

V. - In articles L. 49 and L. 52-2 of the Electoral Code, the words: "audiovisual communication" are replaced by the words: "public electronic communication".

VI. - In article 66 of the law n° 71-1130 of December 31, 1971 on the reform of certain judicial and legal professions, the words: "audiovisual communication" are replaced by the words: "public electronic communication".

VII. - In articles 18-2, 18-3 and 18-4 of the law n° 84-610 of July 16, 1984 on the organization and promotion of physical and sports activities, the words: "audiovisual communication" are replaced by the words: "public electronic communication".

Article 3

The State, local authorities, public establishments and private persons entrusted with a public service mission ensure that access and use of new information technologies allow their staff and disabled personnel to perform their duties.

Article 4

An open standard refers to any communication, interconnection or exchange protocol, and any interoperable data format, whose technical specifications are public and without restrictions on access or implementation.

Chapter II

Technical providers

Article 5

I. - Chapter VI of Title II of the aforementioned law n° 86-1067 of September 30, 1986 is repealed.

II. - The last paragraph of paragraph I of article 6 of the aforementioned law n° 82-652 of July 29, 1982 is deleted.

Article 6

I. - 1. Persons whose activity is to provide access to online public communication services inform their subscribers of the existence of technical means allowing to restrict access to certain services or to select them and offer at least one of these means.

Persons, whether natural or legal, who, even free of charge, for the purpose of providing the public with online public communication services, store signals, writings, images, sounds or messages of any nature provided by the recipients of these services, cannot be held civilly liable for the activities or information stored at the request of a recipient of these services if they did not actually know of their illicit nature or of facts and circumstances indicating this nature, or if, as soon as they had this knowledge, they promptly acted to remove these data or make their access impossible.

(How could a host not know the information it provides?)

The previous paragraph does not apply when the service recipient acts under the authority or control of the person referred to in this paragraph.

The persons referred to in 2 cannot be held criminally liable for the information stored at the request of a recipient of these services if they did not actually know the illicit activity or information, or if, as soon as they had this knowledge, they promptly acted to remove this information or make its access impossible.

(One knows the saying "no one is presumed to ignore the law". Here it should be written "no host is presumed to ignore the content of the sites it hosts".)

The previous paragraph does not apply when the service recipient acts under the authority or control of the person referred to in this paragraph.

The act, by any person, of presenting to the persons referred to in 2 a content or activity as being illegal in order to obtain its removal or to stop its dissemination,

knowing that this information is inaccurate, is punishable by one year of imprisonment and a fine of 15,000 EUR.

(Which host would dare take such a risk?)

The knowledge of the disputed facts is presumed to be acquired by the persons referred to in 2 when the following elements are notified to them:

the date of notification;
if the notifier is a natural person: their name, first name, profession, residence, nationality, date and place of birth; if the requester is a legal person: its form, its name, its headquarters and the body that legally represents it;
the name and residence of the recipient or, if it is a legal person, its name and headquarters;
the description of the disputed facts and their precise location;
the reasons why the content must be removed, including the mention of the legal provisions and the justification of the facts;
a copy of the correspondence addressed to the author or publisher of the disputed information or activities requesting their interruption, removal or modification, or the justification that the author or publisher could not be contacted.

Thus, hosts can be flooded with messages informing them of "disputed facts" present on a site they host. Will they then have the time to verify these facts? If they are free hosts, will they not immediately decide to close the incriminated site, as a precaution?

The persons referred to in 1 and 2 are not producers within the meaning of article 93-3 of the law n° 82-652 of July 29, 1982 on audiovisual communication.
The persons referred to in 1 and 2 are not subject to a general obligation to monitor the information they transmit or store, nor to a general obligation to search for facts or circumstances revealing illicit activities. (

Certainly, they are not subject to the obligation to monitor themselves. But as soon as a "disputed fact" is reported to them, they are de facto aware.

The previous paragraph does not prejudice any targeted and temporary surveillance activity requested by the judicial authority.

Considering the general interest attached to the repression of the incitement to crimes against humanity, racial hatred, and child pornography, the aforementioned persons must contribute to the fight against the dissemination of the offenses referred to in the fifth and eighth paragraphs of article 24 of the law of July 29, 1881 on press freedom and article 227-23 of the Penal Code.

In this regard, they must set up an easily accessible and visible device allowing any person to report this type of data to them. They also have the obligation, on one hand, to promptly inform the competent public authorities of all illicit activities mentioned in the previous paragraph that are reported to them by the recipients of their services, and, on the other hand, to make public the means they dedicate to the fight against these illicit activities. (

here is the host with an obligation, that of promptly informing the competent public authorities

Any failure to comply with the obligations defined in the previous paragraph is punishable by the penalties provided in 1 of VI. (

and here appears the liability of the host who "failed in its obligations", becomes subject to justice

The judicial authority may, by reference or upon request, prescribe to any person referred to in 2 or, in the absence of such, to any person referred to in 1, all measures appropriate to prevent or cease damage caused by the content of a public communication service online. (

By measure, one must understand all those that would allow, on the territory of France, to make the disputed data inaccessible, made available to the public through a site, even if it is hosted abroad, I think, if technically possible. And in my opinion, one day it will be. The reference is a measure with immediate application. The manager of a site, if he sees the access to it suspended, will then have to appeal to the court. Before which competent authority? The CSA?

II. - The persons referred to in 1 and 2 of I hold and keep the data that make it possible to identify anyone who contributed to the creation of the content or one of the contents of the services for which they are providers. (

one can assume that this holding of the identity of site managers constitutes a kind of duty and that the host could be required to provide this identity, that the provision of a false identity could justify the suspension of the provision of information delivered as a site, due to lack of "traceability". In my opinion, this makes in the long run the use of foreign hosting under a false identity illusory

They provide to the persons who edit a public communication service online technical means allowing them to meet the identification conditions provided in III. "(

"they provide". Therefore, if "they do not provide" there is a potential reason for suspension for the communication of information by non-identifiable persons

The judicial authority may request the communication of the data mentioned in the first paragraph from the providers referred to in 1 and 2 of I.

The provisions of articles 226-17, 226-21 and 226-22 of the Penal Code are applicable to the processing of these data.

A decree in the Council of State, after the opinion of the National Commission on Computing and Liberties, defines the data mentioned in the first paragraph and determines the duration and modalities of their conservation.

III. - 1. Persons whose activity is to edit a public communication service online make available to the public, in an open standard:

a) If they are natural persons, their name, first name, residence and phone number and, if they are subject to registration formalities with the trade and companies register or the trades register, their registration number;

b) If they are legal persons, their name or legal name and headquarters, their phone number and, if they are companies subject to registration formalities with the trade and companies register or the trades register, their registration number, their share capital, the address of their headquarters;

( in clear, the sale by correspondence, practiced by individuals, becomes illegal. The state-proxenete regains its rights ).

c) The name of the director or co-director of the publication and, if applicable, that of the editor-in-chief within the meaning of article 93-2 of the law n° 82-652 of July 29, 1982 mentioned above;

d) The name, legal name or trade name and address and phone number of the provider referred to in 2 of I.

Persons editing a public communication service online on a non-professional basis may only make available to the public, to preserve their anonymity, the name, legal name or trade name and address of the provider referred to in 2 of I, provided that they have communicated the personal identification elements provided in 1.

The persons referred to in 2 of I are subject to professional secrecy under the conditions provided in articles 226-13 and 226-14 of the Penal Code, for everything relating to the disclosure of these personal identification elements or of any information allowing the identification of the person concerned. This professional secrecy is not enforceable against the judicial authority.(

Corollary: if the host, even if it is abroad, does not respond to a request for communication of identity, it is a reason for blocking the online publication on the territory of France

IV. - Any person named or designated in a public communication service online has the right of reply, without prejudice to any requests for correction or deletion of the message that they may address to the service, [Provisions declared unconstitutional by decision of the Constitutional Council n° 2004-496 DC of June 10, 2004].

The request for the exercise of the right of reply is addressed to the director of the publication or, when the person editing on a non-professional basis has preserved their anonymity, to the person referred to in 2 of I who forwards it without delay to the director of the publication. It is presented no later than three months from [Provisions declared unconstitutional by decision of the Constitutional Council n° 2004-496 DC of June 10, 2004] the publication of the message justifying this request.

The director of the publication is required to insert the responses of any person named or designated in the public communication service within three days of their receipt, under penalty of a fine of 3,750 EUR, without prejudice to other penalties and damages that the article could give rise to.

The conditions for inserting the response are those provided by article 13 of the aforementioned law of July 29, 1881. The response will always be free.

A decree in the Council of State sets the modalities of application of this article.

V. - The provisions of chapters IV and V of the aforementioned law of July 29, 1881 are applicable to public communication services online and the prescription acquired under the conditions provided by article 6 of said law [Provisions declared unconstitutional by decision of the Constitutional Council n° 2004-496 DC of June 10, 2004].

[Provisions declared unconstitutional by decision of the Constitutional Council n° 2004-496 DC of June 10, 2004.]

VI. - 1. Punished by one year of imprisonment and a fine of 75,000 EUR is the act, for a natural person or the de jure or de facto director of a legal person exercising one of the activities defined in 1 and 2 of I, of not fulfilling the obligations defined in the fourth paragraph of 7 of I, not having kept the information elements referred to in II or not complying with a judicial authority's request to obtain communication of these elements.

Legal persons may be declared criminally responsible for these offenses under the conditions provided in article 121-2 of the Penal Code. They are subject to a fine, following the modalities provided by article 131-38 of the same code, as well as the penalties mentioned in 2° and 9° of article 131-39 of this code. The prohibition mentioned in 2° of this article is pronounced for a maximum of five years and relates to the professional activity in which the offense was committed.

Punished by one year of imprisonment and a fine of 75,000 EUR is the act, for a natural person or the de jure or de facto director of a legal person exercising the activity defined in III, of not having respected the provisions of this same article.

Article 7

When the persons referred to in 1 of I of article 6 invoke, for advertising purposes, the possibility they offer to download files of which they are not the providers, they include in this advertisement a clearly identifiable and readable notice reminding that piracy harms artistic creation.

Article 8

I. - It is inserted, after the fifth paragraph of article L. 332-1 of the Intellectual Property Code, two paragraphs as follows:

"4° The suspension, by any means, of the content of a public communication service online infringing on one of the author's rights, including ordering to stop storing this content or, in the absence of this, to stop allowing access to it. In this case, the deadline provided in article L. 332-2 is reduced to fifteen days.

"The president of the court of appeal may, in the same form, order the measures provided for in 1° to 4° at the request of the holders of neighboring rights defined in Book II."

II. - In the second paragraph of article L. 335-6 of the same code, after the words: "as well as its full publication or excerpts in the newspapers", the words: "or on public communication services online" are inserted.

Article 9

I. - After article L. 32-3-2 of the Post and Telecommunications Code, an article L. 32-3-3 is restored and an article L. 32-3-4 is inserted as follows:

"Art. L. 32-3-3. - Any person carrying out an activity of content transmission on a telecommunications network or of providing access to a telecommunications network

cannot have their civil or criminal liability engaged for these contents, except in cases where they are the origin of the request for transmission, or they select the recipient of the transmission, or they select or modify the contents of the transmission.

"Art. L. 32-3-4. - Any person carrying out an activity of automatic, intermediate and temporary storage of the contents that a provider transmits, solely to make their subsequent transmission more efficient, cannot have their civil or criminal liability engaged for these contents, except in the following cases:

"1° They have modified these contents, have not complied with their access conditions and the usual rules regarding their update, or have hindered the lawful and usual use of the technology used to obtain data;

"2° They have not acted promptly to remove the contents they have stored or to make their access impossible, as soon as they have actually become aware, either that the initially transmitted contents have been removed from the network, or that access to the initially transmitted contents has been made impossible, or that the judicial authorities have ordered the removal of the initially transmitted contents from the network or the impossibility of accessing them."

Again, the criminal and civil liability of a host is not engaged, if ...

II. - Article L. 32-6 of the same code is completed by a II as follows:

"II. - Without prejudice to their full application in Mayotte under paragraph 8 of I of article 3 of the law n° 2001-616 of July 11, 2001 relating to Mayotte, articles L. 32-3-3 and L. 32-3-4 are applicable in New Caledonia, French Polynesia, Wallis and Futuna, and the French Southern and Antarctic Territories."

Chapter III

Regulation of communication

Article 10

I. - Article 42-1 of the aforementioned law n° 86-1067 of September 30, 1986 is modified as follows:

1° In the second paragraph (1°), the words: "of the authorization" are replaced by the words: "of the publication or distribution of the service or services";

2° In the third paragraph (2°), after the words: "of the authorization", the words: "or of the convention" are inserted;

3° After the words: "subject to possible", the end of the fourth paragraph (3°) is worded as follows: "of a suspension of the publication or distribution of the service or services or of part of the program;";

4° The fifth paragraph (4°) is completed by the words: "or the unilateral termination of the convention."

II. - After the first paragraph of article 42-2 of the same law, two paragraphs are inserted as follows:

"When the breach constitutes a criminal offense, the amount of the pecuniary penalty cannot exceed that provided for the criminal fine.

"When the High Council of Audiovisual has imposed a definitive pecuniary penalty before the criminal judge has finally decided on the same facts or related facts, the latter may order that the pecuniary penalty be offset against the fine it imposes."

It is indeed the High Council of Audiovisual, a "council of nine sages appointed by the state", that imposes pecuniary penalties, outside the judicial authority

Article 11

Article 42-4 of the aforementioned law n° 86-1067 of September 30, 1986 is modified as follows:

1° In the first sentence, the words: "holders of authorization for the operation of an audiovisual communication service" are replaced by the words: "publishers of radio or television services";

2° After the first sentence, two sentences are inserted as follows:

"The High Council of Audiovisual requests the interested party to present its observations within a period of two days from the receipt of this request. The decision is then made without implementing the procedure provided in article 42-7.";

3° The last sentence is completed by the words: "under the conditions set out in article 42-2."

Article 12

At the end of article 48-2 of the aforementioned law n° 86-1067 of September 30, 1986, the words: "and provided that the breach is not constitutive of a criminal offense" are removed.

Article 13

In the second paragraph of article 1 of the aforementioned law n° 86-1067 of September 30, 1986, after the words: "on the other hand", the words: "by the protection of childhood and adolescence," are inserted.

TITLE II

ON ELECTRONIC COMMERCE

Chapter I

General Principles

Article 14

Electronic commerce is the economic activity by which a person offers or provides at a distance and by electronic means the supply of goods or services.

It also includes services such as those providing online information, commercial communications and tools for data search, access and retrieval, access to a communication network or information hosting, even if they are not remunerated by those who receive them.

A person is considered to be established in France within the meaning of this chapter when they have permanently and stably settled there to effectively carry out their activity, regardless of the location of the headquarters of a legal person.

It is useless to hope to be considered as a foreign resident when the activity refers to the territory of France "in a stable and lasting manner"

Article 15

I. - Any natural or legal person carrying out the activity defined in the first paragraph of article 14

( which defines electronic commerce )

is responsible by right towards the buyer for the proper performance of the obligations arising from the contract, whether these obligations are to be performed by herself or by other service providers, without prejudice to her right of recourse against them.

However, she may exempt herself from all or part of her liability by proving that the non-performance or improper performance of the contract is attributable, either to the buyer, or to an unforeseeable and insurmountable event involving a third party not involved in the performance of the services provided by the contract, or to a case of force majeure.

II. - Article L. 121-20-3 of the Consumer Code is supplemented by two paragraphs as follows:

" The professional is responsible by right towards the consumer for the proper performance of the obligations arising from the contract concluded at a distance, whether these obligations are to be performed by the professional who concluded this contract or by other service providers, without prejudice to her right of recourse against them.

" However, she may exempt herself from all or part of her liability by proving that the non-performance or improper performance of the contract is attributable, either to the consumer, or to an unforeseeable and insurmountable event involving a third party to the contract, or to a case of force majeure. "

Article 16

I. - The activity defined in Article 14 is exercised freely on the national territory, excluding the following areas:

1° Gambling games, including betting and lotteries, legally authorized;

2° Activities of representation and legal assistance;

3° Activities carried out by notaries in accordance with the provisions of Article 1 of the Ordinance No. 45-2590 of November 2, 1945 relating to the status of notaries.

II. - Furthermore, when carried out by persons established in a European Community Member State other than France, the activity defined in Article 14 is subject to compliance:

1° With the provisions relating to the free establishment and the free provision of services within the European Community in the field of insurance, provided for in articles L. 361-1 to L. 364-1 of the Insurance Code;

2° With the provisions relating to the advertising and solicitation of collective investment undertakings, provided for in article L. 214-12 of the Monetary and Financial Code;

3° With the provisions relating to anti-competitive practices and economic concentration, provided for in titles II and III of book IV of the Commercial Code;

4° With the provisions relating to the prohibition or authorization of unsolicited electronic mail advertising;

5° With the provisions of the General Tax Code;

6° With the rights protected by the Intellectual Property Code.

Article 17

The activity defined in Article 14 is subject to the law of the Member State on the territory of which the person carrying it out is established, subject to the mutual intention of this person and of the person to whom the goods or services are intended.

The application of the preceding paragraph cannot have the effect:

1° Of depriving a consumer who has his habitual residence on the national territory of the protection afforded by the mandatory provisions of the French law relating to contractual obligations, in accordance with the international commitments undertaken by France. For the purposes of this article, the provisions relating to contractual obligations include the provisions applicable to the elements of the contract, including those defining the consumer's rights, which have a decisive influence on the decision to contract;

2° Of derogating from the mandatory form rules provided for by French law for contracts creating or transferring rights over real estate located on the territory of the national territory;

3° Of derogating from the rules determining the applicable law for insurance contracts for risks located on the territory of one or more States parties to the Agreement on the European Economic Area and for the obligations undertaken there, provided for in articles L. 181-1 to L. 183-2 of the Insurance Code.

Article 18

Under the conditions provided for by decree in the Council of State, measures restricting, on a case-by-case basis, the free exercise of their activity by the persons mentioned in Article 16 may be taken by the administrative authority when there is an infringement or a serious and grave risk of infringement of the maintenance of public order and security, the protection of minors, the protection of public health, the preservation of the interests of national defense, or the protection of natural persons who are consumers or investors other than investors belonging to a restricted circle defined in article L. 411-2 of the Monetary and Financial Code.

Article 19

Without prejudice to other information obligations provided for by the applicable legislative and regulatory texts, any person carrying out the activity defined in Article 14 is required to ensure that those to whom the supply of goods or the provision of services is intended have easy, direct, and permanent access using an open standard to the following information:

1° If it is a natural person, his name and first name, and if it is a legal person, its name;

2° The address where it is established, its email address, as well as its phone number;

3° If it is subject to the registration formalities of the Trade and Companies Register or the Crafts Register, its registration number, its share capital, and the address of its headquarters;

4° If it is subject to the value-added tax and identified by an individual number in application of article 286 ter of the General Tax Code, its individual identification number;

5° If its activity is subject to a licensing regime, the name and address of the authority that issued it;

6° If it is a member of a regulated profession, the reference to the applicable professional rules, its professional title, the Member State in which it was granted, as well as the name of the order or professional body with which it is registered.

Any person carrying out the activity defined in Article 14 must, even in the absence of a contract offer, as soon as it mentions a price, clearly and unambiguously indicate it, and in particular if taxes and delivery fees are included. The present paragraph applies without prejudice to the provisions governing misleading advertising provided for in article L. 121-1 of the Consumer Code, nor to the information obligations on prices provided for by the applicable legislative and regulatory texts.

Infringements of the provisions of this article are investigated and recorded under the conditions set out in the first, third and fourth paragraphs of article L. 450-1 and articles L. 450-2, L. 450-3, L. 450-4, L. 450-7, L. 450-8, L. 470-1 and L. 470-5 of the Commercial Code.

(The sale via the internet leads to illicit trade)

Chapter II

Electronic advertising

Article 20

Any advertisement, in any form, accessible through an online public communication service, must be clearly identifiable as such. It must clearly identify the natural or legal person for whom it is carried out.

The preceding paragraph applies without prejudice to the provisions punishing misleading advertising provided for in article L. 121-1 of the Consumer Code.

Article 21

Articles L. 121-15-1, L. 121-15-2 and L. 121-15-3 are inserted after article L. 121-15 of the Consumer Code, as follows:

" Art. L. 121-15-1. - Advertisements, and in particular promotional offers, such as discounts, prizes or gifts, as well as contests or promotional games, addressed by electronic mail, must be clearly and unambiguously identifiable from their receipt by the recipient, or in case of technical impossibility, within the body of the message.

" Art. L. 121-15-2. - Without prejudice to the provisions punishing misleading advertising provided for in article L. 121-1, the conditions under which the possibility of benefiting from promotional offers as well as that of participating in contests or promotional games, when these offers, contests or games are offered electronically, must be clearly specified and easily accessible.

" Art. L. 121-15-3. - Articles L. 121-15-1 and L. 121-15-2 also apply to advertisements, offers, contests or games intended for professionals.

" Infringements of the provisions of articles L. 121-15-1 and L. 121-15-2 are subject to the penalties provided for in article 121-6. They are investigated and recorded under the conditions provided for in article L. 121-2. Articles L. 121-3 and L. 121-4 are also applicable. "

Article 22

I. - Article L. 33-4-1 of the Postal and Telecommunications Code is worded as follows:

" Art. L. 33-4-1. - Direct prospecting by means of an automatic dialer, a fax machine or an electronic mail using, in any form, the personal data of a person who has not expressed prior consent to receive direct prospecting by this means is prohibited.

( What about mailings on a client file? )

" For the application of this article, consent means any manifestation of free, specific and informed will by which a person agrees that his personal data be used for direct prospecting.

" Direct prospecting consists of sending any message intended to promote, directly or indirectly, goods, services or the image of a person selling goods or providing services.

( same remark )

" However, direct prospecting by electronic mail is permitted if the recipient's contact details have been collected directly from him, in compliance with the provisions of the law No. 78-17 of January 6, 1978 relating to computing, files and freedoms, at the time of a sale or a service provision, if the direct prospecting concerns similar products or services provided by the same natural or legal person, and if the recipient is offered, clearly and unambiguously, the possibility to oppose, without cost, except those related to the transmission of the refusal, and in a simple manner, the use of his contact details when they are collected and each time an electronic mail of prospecting is addressed to him.

( to be clarified )

" In all cases, it is prohibited to send messages for direct prospecting by means of automatic dialers, fax machines and electronic mails, without indicating valid contact details to which the recipient can usefully transmit a request to stop these communications without other costs than those related to the transmission of this request. It is also prohibited to conceal the identity of the person for whom the communication is made and to mention an object unrelated to the service or product offered.

" The National Commission for Computing and Freedoms ensures, for direct prospecting using the personal data of a person, the compliance with the provisions of this article by using the powers granted to it by the aforementioned law No. 78-17 of January 6, 1978. For this purpose, it may, in particular, receive, by any means, complaints relating to violations of the provisions of this article.

" Infringements of the provisions of this article are investigated and recorded under the conditions set out in the first, third and fourth paragraphs of article L. 450-1 and articles L. 450-2, L. 450-3, L. 450-4, L. 450-7, L. 450-8, L. 470-1 and L. 470-5 of the Commercial Code.

" A decree in the Council of State specifies, as needed, the conditions of application of this article, in particular with regard to the different technologies used. "

II. - Article L. 121-20-5 of the Consumer Code is worded as follows:

" Art. L. 121-20-5. - The provisions of article L. 33-4-1 of the Postal and Telecommunications Code, as reproduced below, apply:

" For the application of this article, consent means any manifestation of free, specific and informed will by which a person agrees that his personal data be used for direct prospecting.

" Direct prospecting consists of sending any message intended to promote, directly or indirectly, goods, services or the image of a person selling goods or providing services.

" A decree in the Council of State specifies, as needed, the conditions of application of this article, in particular with regard to the different technologies used. "

III. - Without prejudice to articles L. 33-4-1 of the Postal and Telecommunications Code and L. 121-20-5 of the Consumer Code as they result from I and II of this article, the consent of persons whose contact details were collected before the publication of this law, under the conditions provided for by the law No. 78-17 of January 6, 1978 relating to computing, files and freedoms, for the use of these details for direct prospecting may be requested, by electronic mail, during the six months following the publication of this law. After the expiration of this period, these persons are presumed to have refused the further use of their personal contact details for direct prospecting if they have not explicitly expressed their consent to it.

Article 23

Article L. 121-20-4 of the Consumer Code is supplemented by a paragraph as follows:

" The provisions of articles L. 121-18 and L. 121-19 are however applicable to contracts concluded electronically when they relate to the provision of the services mentioned in 2°. "

Article 24

At the end of the last sentence of article L. 121-27 of the Consumer Code, the references: "to articles L. 121-16 and L. 121-19" are replaced by the references: "to articles L. 121-18, L. 121-19, L. 121-20, L. 121-20-1 and L. 121-20-3".

Chapter III

Obligations in electronic form

Article 25

I. - After article 1108 of the Civil Code, articles 1108-1 and 1108-2 are inserted as follows:

" Art. 1108-1. - When a written document is required for the validity of a legal act, it may be established and kept in electronic form under the conditions provided for in articles 1316-1 and 1316-4 and, when an authentic act is required, in the second paragraph of article 1317.

" When a written signature by the person himself is required, he may affix it in electronic form if the conditions for this affixation are such as to guarantee that it can only be done by himself.

" Art. 1108-2. - The provisions of article 1108-1 are exempted for:

" 1° Private deeds relating to family and inheritance law;

" 2° Private deeds relating to personal or real securities, of a civil or commercial nature, except those concluded by a person for the needs of his profession. "

II. - After chapter VI of title III of book III of the same code, a chapter VII is inserted as follows:

" Chapter VII

" Contracts in electronic form

" Art. 1369-1. - Anyone who, in a professional capacity, by electronic means, offers the supply of goods or the provision of services, makes available the applicable contractual conditions in a manner that allows their preservation and reproduction. Without prejudice to the validity conditions mentioned in the offer, its author remains bound by it as long as it is accessible electronically by his own initiative.

" The offer also states:

" 1° The different steps to be followed to conclude the contract electronically;

" 2° The technical means allowing the user, before concluding the contract, to identify errors made in the data entry and correct them;

" 3° The languages offered for the conclusion of the contract;

" 4° In the case of archiving the contract, the modalities of this archiving by the offeror and the conditions of access to the archived contract;

" 5° The means of consulting electronically the professional and commercial rules to which the offeror intends, if applicable, to submit.

" Art. 1369-2. - For the contract to be validly concluded, the recipient of the offer must have had the possibility to check the details of his order and its total price, and to correct any errors, before confirming it to express his acceptance.

" The offeror must acknowledge without unjustified delay and by electronic means the order that has been addressed to him.

" The order, the confirmation of the acceptance of the offer and the acknowledgment of receipt are considered received when the parties to which they are addressed can access them.

" Art. 1369-3. - The obligations referred to in 1° to 5° of article 1369-1 and the first two paragraphs of article 1369-2 are exempted for contracts for the supply of goods or the provision of services concluded exclusively by exchange of electronic mail.

" In addition, it may be derogated from the provisions of article 1369-2 and 1° to 5° of article 1369-1 in agreements concluded between professionals. "

Article 26

Under the conditions provided for in article 38 of the Constitution, the Government is authorized by ordinance to adapt the legislative provisions subordinating the conclusion, validity or effects of certain contracts to formalities other than those mentioned in article 1108-1 of the Civil Code, in order to enable their fulfillment electronically.

The ordinance provided for in the preceding paragraph must be adopted within the year following the publication of this law.

A draft bill of ratification must be submitted to the Parliament within a period of six months from the publication of the ordinance.

Article 27

An article L. 134-2 is inserted after article L. 134-1 of the Consumer Code, as follows:

" Art. L. 134-2. - When the contract is concluded electronically and relates to an amount equal to or exceeding a fixed amount by decree, the professional party ensures the conservation of the document attesting to it for a period determined by the same decree and guarantees at any time the access to its counterparty if the latter makes a request. "

Article 28

The information and transmission obligations of the contractual conditions referred to in articles 19 and 25 are fulfilled on the terminal equipment of mobile radio communication according to modalities specified by decree.

TITLE III

OF SECURITY

IN THE DIGITAL ECONOMY

Chapter I

Cryptology means and services

Article 29

A cryptology means is any hardware or software designed or modified to transform data, whether information or signals, using secret conventions or to perform the inverse operation with or without secret conventions. These cryptology means mainly aim to ensure the security of the storage or transmission of data, by enabling their confidentiality, authentication or integrity control.

A cryptology service is any operation aimed at implementing, on behalf of others, cryptology means.

Section 1

Use, supply, transfer, import and export of cryptology means

Article 30

I. - The use of cryptology means is free.

II. - The supply, transfer from or to a European Community Member State, import and export of cryptology means ensuring exclusively authentication or integrity control functions are free.

III. - The supply, transfer from a European Community Member State or import of a cryptology means not ensuring exclusively authentication or integrity control functions are subject to a prior declaration to the Prime Minister, except in the cases provided for in b of this III. The supplier or the person carrying out the transfer or import keeps the Prime Minister at his disposal a description of the technical characteristics of this cryptology means, as well as the source code of the software used. A decree in the Council of State fixes:

If the operator of a site tries to use cryptography to disseminate information from a European Community Member State, they are required to make a prior authorization request to the Prime Minister and "keep at his disposal a description of the technical characteristics as well as the source code of the software used. The Prime Minister can therefore request at any time access to the encryption method, therefore to the content of the encrypted messages

a) The conditions under which these declarations are made, the conditions and deadlines within which the Prime Minister can request the communication of the characteristics of the means, as well as the nature of these characteristics;

b) The categories of means whose technical characteristics or usage conditions are such that, taking into account the interests of national defense and internal or external security of the State, their supply, their transfer from a European Community Member State or their import can be exempted from any prior formalities.

IV. - The transfer to a European Community Member State and the export of a cryptology means not ensuring exclusively authentication or integrity control functions are subject to the authorization of the Prime Minister, except in the cases provided for in b of this IV. A decree in the Council of State fixes:

a) The conditions under which the authorization requests are made as well as the deadlines within which the Prime Minister decides on these requests;

b) The categories of means whose technical characteristics or usage conditions are such that, taking into account the interests of national defense and internal or external security of the State, their transfer to a European Community Member State or their export can be subject to the declaration regime and the information obligations provided for in III, or exempted from any prior formalities.

Section 2

Supply of cryptology services

Article 31

I. - The supply of cryptology services must be declared to the Prime Minister. A decree in the Council of State defines the conditions under which this declaration is made and may provide exceptions to this obligation for services whose technical characteristics or conditions of supply are such that, taking into account the interests of national defense and internal or external security of the State, this supply can be exempted from any prior formalities.

II. - The persons carrying out this activity are subject to professional secrecy, in the conditions provided for in articles 226-13 and 226-14 of the Penal Code.

Article 32

Unless they can prove that they have not committed any intentional fault or negligence, the persons providing cryptology services for confidentiality purposes are responsible for the damage caused to the persons entrusting them with the management of their secret agreements in the event of an infringement of the integrity, confidentiality or availability of the data transformed using these agreements.

Article 33

Unless they can prove that they have not committed any intentional fault or negligence, the service providers of electronic certification are responsible for the damage caused to the persons who reasonably relied on the certificates presented by them as qualified in each of the following cases:

1° The information contained in the certificate, on the date of its issuance, was inaccurate;

2° The data required for the certificate to be considered qualified were incomplete;

3° The issuance of the certificate did not involve verifying that the signatory possesses the private convention corresponding to the public convention of this certificate;

4° The service providers did not, if applicable, have the certificate revoked and keep this information available to third parties.

The service providers are not responsible for the damage caused by the use of the certificate beyond the limits set for its use or the value of the transactions for which it can be used, provided that these limits are included in the certificate and are accessible to users.

They must provide a sufficient financial guarantee, specifically allocated for the payment of the sums they may have to pay to the persons who reasonably relied on the qualified certificates they issue, or an insurance guaranteeing the financial consequences of their professional civil liability.

Section 3

Administrative sanctions

Article 34

When a provider of cryptology means, even free of charge, does not comply with the obligations to which it is subject under article 30, the Prime Minister may, after having allowed the interested party to present his observations, pronounce the prohibition of the circulation of the relevant cryptology means.

The prohibition of circulation applies throughout the national territory. It also imposes on the provider the obligation to withdraw:

1° From commercial distributors, cryptology means whose circulation has been prohibited;

2° From materials constituting cryptology means whose circulation has been prohibited and which have been purchased for a fee, directly or through commercial distributors.

The relevant cryptology means can be put back into circulation once the previously unfulfilled obligations have been met, under the conditions provided for in article 30.

Section 4

Penal provisions

Article 35

I. - Without prejudice to the application of the Customs Code:

1° The act of not fulfilling the obligation to declare provided for in article 30 in the case of supply, transfer, import or export of a cryptology means or the obligation to communicate to the Prime Minister provided for by the same article is punishable by one year of imprisonment and a fine of 15,000 EUR;

2° The act of exporting a cryptology means or transferring it to a European Community Member State without having previously obtained the authorization mentioned in article 30 or outside the conditions of this authorization, when such authorization is required, is punishable by two years of imprisonment and a fine of 30,000 EUR.

II. - The act of selling or renting a cryptology means that has been subject to an administrative prohibition of circulation under article 34 is punishable by two years of imprisonment and a fine of 30,000 EUR.

III. - The act of providing cryptology services aimed at ensuring confidentiality functions without having fulfilled the obligation to declare provided for in article 31 is punishable by two years of imprisonment and a fine of 30,000 EUR.

IV. - Natural persons guilty of any of the offenses provided for in this article are also subject to the following additional penalties:

1° Prohibition, according to the modalities provided by articles 131-19 and 131-20 of the Penal Code, to issue checks other than those allowing the drawer to withdraw funds from the drawee or those that are certified, and to use payment cards;

2° Confiscation, according to the modalities provided by article 131-21 of the Penal Code, of the thing used or intended to commit the offense or of the thing that is its product, except for objects that are eligible for restitution;

3° Prohibition, according to the modalities provided by article 131-27 of the Penal Code and for a maximum period of five years, to hold a public office or to exercise a professional or social activity in the exercise or in the course of the exercise of which the offense was committed;

4° Closure, under the conditions provided by article 131-33 of the Penal Code and for a maximum period of five years, of establishments or of one or more of the establishments of the company that were used to commit the offenses;

5° Exclusion, under the conditions provided by article 131-34 of the Penal Code and for a maximum period of five years, from public contracts.

V. - Legal persons are criminally liable, under the conditions provided by article 121-2 of the Penal Code, for the offenses provided for in this article. The penalties incurred by legal persons are:

1° A fine, according to the modalities provided by article 131-38 of the Penal Code;

2° The penalties mentioned in article 131-39 of the Penal Code.

VI. - Article L. 39-1 of the Postal and Telecommunications Code is supplemented by a 4° as follows:

« 4° To market or install devices designed to render all types of mobile phones inoperative, both for transmission and reception, outside the cases provided for in article L. 33-3. »

Article 36

In addition to judicial police officers acting in accordance with the provisions of the Code of Criminal Procedure and, within their area of competence, customs officers acting in accordance with the provisions of the Customs Code, officers authorized by the Prime Minister and sworn in accordance with conditions fixed by decree in the Council of State may search and record by way of a report the offenses against the provisions of articles 30, 31 and 34 of this law and the texts applied thereto.

Officers authorized by the Prime Minister mentioned in the preceding paragraph may access means of transport, land or premises used for professional purposes, excluding parts of them used for private residence, in order to search for and record the offenses, request the communication of all professional documents and take copies, collect information and justifications upon request or on site. Officers may access these premises only during their opening hours when they are open to the public and, in other cases, between 8 a.m. and 8 p.m.

The Public Prosecutor is previously informed of the operations planned for the purpose of investigating the offenses. He may oppose these operations. The reports are transmitted to him within five days of their drafting. A copy is also given to the person concerned.

Authorized officers may, in the same places and under the same time conditions, seize the cryptographic means mentioned in article 29 upon judicial authorization given by an order of the President of the Court of Appeal or a judge of the bench delegated by him, previously informed by the Public Prosecutor. The request must contain all the information elements that are necessary to justify the seizure. This is carried out under the authority and control of the judge who authorized it.

The seized materials and software are immediately inventoried. The inventory is attached to the report drawn up on the spot. The original report and inventory are transmitted, within five days of their drafting, to the judge who ordered the seizure. They are filed in the proceedings.

The President of the Court of Appeal or the judge of the bench delegated by him may, at any time, on his own initiative or at the request of the person concerned, order the lifting of the seizure.

Anyone who obstructs the conduct of the investigations provided for in this article or refuses to provide the information or documents relating to them is punishable by six months' imprisonment and a fine of 7,500 EUR.

Article 37

After article 132-78 of the Penal Code, an article 132-79 is inserted as follows:

« Art. 132-79. - When a cryptographic means within the meaning of article 29 of law n° 2004-575 of June 21, 2004, for trust in the digital economy, has been used to prepare or commit a crime or offense, or to facilitate its preparation or commission, the maximum penalty of deprivation of liberty is increased as follows:

« 1° It is raised to life imprisonment when the offense is punishable by thirty years of imprisonment;

« 2° It is raised to thirty years of imprisonment when the offense is punishable by twenty years of imprisonment;

« 3° It is raised to twenty years of imprisonment when the offense is punishable by fifteen years of imprisonment;

« 4° It is raised to fifteen years of imprisonment when the offense is punishable by ten years of imprisonment;

« 5° It is raised to ten years of imprisonment when the offense is punishable by seven years of imprisonment;

« 6° It is raised to seven years of imprisonment when the offense is punishable by five years of imprisonment;

« 7° It is doubled when the offense is punishable by three years of imprisonment or less.

« The provisions of this article do not apply to the author or accomplice of the offense who, at the request of judicial or administrative authorities, has provided the plaintext version of the encrypted messages as well as the necessary secret agreements for decryption. »

Section 5

Seizure of State Means

for the clarification of encrypted data

Article 38

After the first paragraph of article 230-1 of the Code of Criminal Procedure, a paragraph is inserted as follows:

« If the person so designated is a legal person, its legal representative submits to the approval of the Public Prosecutor or the court seized of the case the name of the physical person or persons who, within that legal person and in its name, will carry out the technical operations mentioned in the first paragraph. Unless they are listed in the list provided for in article 157, the persons so designated take an oath in writing as provided in the first paragraph of article 160. »

Section 6

Other provisions

Article 39

The provisions of this chapter do not prevent the application of the decree of April 18, 1939, fixing the regime of war materials, arms and ammunition, to those cryptographic means that are specially designed or modified to carry, use or implement arms, support or implement armed forces, as well as those specially designed or modified for the account of the Ministry of Defense to protect national defense secrets.

Article 40

I. - Article 28 of the law n° 90-1170 of December 29, 1990 on the regulation of telecommunications is repealed from the date of entry into force of this chapter.

II. - The authorizations and declarations of supply, import and export of cryptographic means issued or made in accordance with the provisions of article 28 of the aforementioned law n° 90-1170 of December 29, 1990 and its implementing texts remain valid until the expiration of the term provided for by them. The approvals granted to organizations entrusted with managing secret agreements for cryptographic means allowing for confidentiality functions are, for these means, declarations within the meaning of article 31.

Chapter II

Fight against cybercrime

Article 41

Article 56 of the Code of Criminal Procedure is modified as follows:

1° In the first paragraph, after the word: "documents", the words: " , computer data" are inserted and, after the word: "pieces", the word: " , information" is inserted;

2° In the second paragraph, the words: " or documents" are replaced by the words: " , documents or computer data";

3° The fifth paragraph is replaced by three paragraphs as follows:

« The computer data necessary to establish the truth are seized by placing the physical medium of these data under judicial custody or by making a copy in the presence of the persons present during the search.

« If a copy is made, the Public Prosecutor may order the definitive erasure of the computer data, on the physical medium that has not been placed under judicial custody, whose possession or use is illegal or dangerous to the safety of persons or property.

« With the approval of the Public Prosecutor, the judicial police officer only retains the seizure of the objects, documents and computer data useful to establish the truth. »

Article 42

At article 94 of the Code of Criminal Procedure, after the words: "of objects", the words: " or computer data" are inserted.

Article 43

Article 97 of the Code of Criminal Procedure is modified as follows:

1° In the first paragraph, after the words: "of documents", the words: " or computer data" are inserted;

2° In the second paragraph, the words: "the objects and documents" are replaced by the words: "the objects, documents or computer data";

3° In the third paragraph, the words: "and documents" are replaced by the words: ", documents and computer data";

4° In the fifth paragraph, after the word: "documents", the words: " or computer data" are inserted;

5° After the second paragraph, two paragraphs are inserted as follows:

« If a copy is made within the framework of this procedure, the judge may order the definitive erasure of the computer data, on the physical medium that has not been placed under judicial custody, whose possession or use is illegal or dangerous to the safety of persons or property. »

Article 44

Article 227-23 of the Penal Code is modified as follows:

1° The first paragraph is completed by a sentence as follows:

« The attempt is punished with the same penalties. »;

2° In the second paragraph, after the word: "act", the words: "of offering or" are inserted.

Article 45

I. - Article 323-1 of the Penal Code is modified as follows:

1° In the first paragraph, the words: "of one year" are replaced by the words: "two years" and the amount: "15,000 EUR" is replaced by the amount: "30,000 EUR";

2° In the second paragraph, the words: "two years" are replaced by the words: "three years" and the amount: "30,000 EUR" is replaced by the amount: "45,000 EUR".

II. - In article 323-2 of the same code, the words: "three years" are replaced by the words: "five years" and the amount: "45,000 EUR" is replaced by the amount: "75,000 EUR".

III. - In article 323-3 of the same code, the words: "three years" are replaced by the words: "five years" and the amount: "45,000 EUR" is replaced by the amount: "75,000 EUR".

Article 46

I. - After article 323-3 of the Penal Code, an article 323-3-1 is inserted as follows:

« Art. 323-3-1. - The act, without a legitimate reason, of importing, possessing, offering, transferring or making available an equipment, instrument, computer program or any data designed or specifically adapted to commit one or more of the offenses provided for in articles 323-1 to 323-3 is punishable by the penalties provided respectively for the offense itself or for the most severely punished offense. »

II. - In articles 323-4 and 323-7 of the same code, the words: "articles 323-1 to 323-3" are replaced by the words: "articles 323-1 to 323-3-1".

TITLE IV

SATELLITE SYSTEMS

Article 47

Article L. 32 of the Postal and Telecommunications Code is supplemented by a 16° as follows:

« 16° Satellite system.

« A satellite system is any set of terrestrial and space stations intended to ensure space communications and comprising one or more artificial satellites of the Earth. »

Article 48

I. - Book II of the Postal and Telecommunications Code is supplemented by a Title VIII as follows:

« TITLE VIII

FREQUENCY ASSIGNMENTS

RELATING TO SATELLITE SYSTEMS

« Art. L. 97-2. - I. - 1. Any request for a frequency assignment relating to a satellite system is addressed to the National Frequency Agency.

« Unless the requested assignment is not in conformity with the national frequency band distribution table or the provisions of the International Telecommunication Union instruments, the National Frequency Agency declares, on behalf of France, the frequency assignment to the International Telecommunication Union and initiates the procedure provided for in the Radio Regulations.

« 2. The operation of a frequency assignment to a satellite system, declared by France to the International Telecommunication Union, is subject to the authorization of the Minister in charge of telecommunications, after the opinion of the authorities responsible for the radio frequency assignments.

« The granting of the authorization is conditional on the applicant's demonstration of its ability to control the emission of all radio stations, including terrestrial stations, using the frequency assignment, as well as on the payment to the National Frequency Agency of a fee corresponding to the costs of processing the declared file to the International Telecommunication Union.

« The authorization may be refused in the following cases:

« 1° For the protection of public order, the needs of defense or public safety;

« 2° When the request is not compatible, either with the commitments undertaken by France in the field of radio communications, or with the existing or foreseeable use of frequency bands, or with other requests for authorization allowing for better management of the frequency spectrum;

« 3° When the request has an impact on the rights attached to frequency assignments previously declared by France to the International Telecommunication Union;

« 4° When the applicant has been subject to one of the penalties provided for in paragraph III of this article or in article L. 97-3.

« The authorization becomes invalid if the operation proves incompatible with subsequent coordination agreements following the granting of the authorization.

« II. - The holder of an authorization must comply with the technical specifications notified by France to the International Telecommunication Union as well as, if applicable, the coordination agreements concluded with other member states of the International Telecommunication Union or with other operators of frequency assignments declared by France to the International Telecommunication Union, including agreements subsequent to the granting of the authorization.

« The holder must ensure, on an ongoing basis, the control of the emission of all radio stations, including terrestrial stations, using the frequency assignment.

« The holder of the authorization must cooperate with the administration for the implementation of the provisions of the Radio Regulations.

« At the request of the Minister in charge of telecommunications, the holder of the authorization must cease any harmful interference caused by the satellite system that has been authorized, in the cases provided for in the Radio Regulations.

« The obligations imposed by this article on the holder of the authorization also apply to the radio stations authorized under the authorization that are owned, installed or operated by third parties or located outside of France.

« The authorization is granted in a personal capacity and cannot be transferred to a third party. It can only be transferred after the approval of the administrative authority.

« III. - When the holder of the authorization provided for in paragraph I does not comply with the obligations imposed by the legislative or regulatory texts, the Minister in charge of telecommunications orders him to comply within a determined period.

« If the holder does not comply with the order, the Minister in charge of telecommunications may impose one of the penalties provided for in paragraph 2 of article L. 36-11. The procedure provided for in paragraphs 2 and 5 of article L. 36-11 is applicable. In addition, he may decide to interrupt the procedure initiated by France with the International Telecommunication Union.

« IV. - The obtaining of the authorization provided for in paragraph I does not exempt, where applicable, from other authorizations provided for by the laws and regulations in force, in particular those provided for in Title I of this book and those relating to the provision of radio or television services on the territory of France provided for by the law n° 86-1067 of September 30, 1986 mentioned above.

« V. - This article is not applicable:

« 1° When the frequency assignment is used by an administration for its own needs in a frequency band to which it is assigned, in accordance with article 21 of the law n° 86-1067 of September 30, 1986 mentioned above;

« 2° When France has acted with the International Telecommunication Union, in its capacity as the notifying administration, on behalf of a group of member states of the International Telecommunication Union.

« VI. - A decree in the Council of State sets the modalities of application of this article. It specifies:

« 1° The procedure by which authorizations are issued or withdrawn and by which their invalidity is established;

« 2° The duration and conditions for modification and renewal of the authorization;

« 3° The conditions for the deployment of the satellite system;

« 4° The modalities for the establishment and collection of the fee provided for in the second paragraph of paragraph 2 of I.

« Art. L. 97-3. - It is punishable by six months' imprisonment and a fine of 75,000 EUR to operate a frequency assignment relating to a satellite system declared by France to the International Telecommunication Union, without the authorization provided for in article L. 97-2, or to continue this operation in violation of a suspension or withdrawal decision or an invalidity notice of this authorization.

« Legal persons may be held criminally liable, under the conditions provided for in article 121-2 of the Penal Code, for the offenses defined in this article. The penalties incurred by legal persons are:

« 1° A fine, according to the modalities provided for in article 131-38 of the Penal Code;

« 2° The penalties provided for in paragraphs 4, 5, 8 and 9 of article 131-39 of the same code.

« Officials and agents of the telecommunications administration and the National Frequency Agency mentioned in article L. 40 may investigate and record these offenses under the conditions set forth in that article.

« Art. L. 97-4. - Without prejudice to their full application to Mayotte in accordance with paragraph 8 of I of article 3 of the law n° 2001-616 of July 11, 2001 relating to Mayotte, articles L. 97-2 and L. 97-3 are applicable in New Caledonia, French Polynesia, Wallis and Futuna, and the French Southern and Antarctic Territories. »

II. - After the fourth paragraph of I of article L. 97-1 of the same code, a paragraph is inserted as follows:

« It handles, on behalf of the State, the applications for authorization submitted in accordance with article L. 97-2. »

Article 49

Persons who have requested the State or the National Frequency Agency to declare a frequency assignment to the International Telecommunication Union prior to the publication of this law must, if they wish to retain the exploitation rights of this frequency assignment, request the authorization provided for in article L. 97-2 of the Postal and Telecommunications Code, within a period of one year from the date of publication of the decree provided for in VI of article L. 97-2.

TITLE V

DEVELOPMENT OF INFORMATION AND COMMUNICATION TECHNOLOGIES

Chapter I

Coverage of the territory

by digital services

Article 50

I. - Article L. 1511-6 of the General Code of Local Authorities is repealed.

II. - Title II of Book IV of the first part of the same code is supplemented by a Chapter V as follows:

« Chapter V

Local telecommunications networks and services

« Art. L. 1425-1. - I. - Local authorities and their associations may establish and operate, on their territory, infrastructures and telecommunications networks within the meaning of paragraphs 3 and 15 of article L. 32 of the Postal and Telecommunications Code, acquire usage rights for this purpose or purchase existing infrastructures or networks. They may make such infrastructures or networks available to operators or independent network users. The intervention of local authorities and their associations is carried out in line with public initiative networks, guarantees the shared use of infrastructures established or acquired under this article and respects the principle of equality and free competition in the electronic communications markets.

« Under the same conditions as in the previous paragraph, local authorities and their associations may only provide telecommunications services to end users after having verified the insufficiency of private initiatives capable of meeting the needs of end users and having informed the Telecommunications Regulation Authority. The interventions of the local authorities are carried out under objective, transparent, non-discriminatory and proportionate conditions.

« The insufficiency of private initiatives is verified by an unsuccessful tender aimed at meeting the needs of end users in telecommunications services.

« II. - When they exercise a telecommunications operator activity, local authorities and their associations are subject to all the rights and obligations governing this activity.

« A single legal person cannot simultaneously exercise a telecommunications operator activity and be responsible for granting passage rights intended to enable the establishment of public telecommunications networks.

« The expenses and revenues related to the establishment of public telecommunications networks and the exercise of a telecommunications operator activity by local authorities and their associations are recorded in a separate accounting.

« III. - The Telecommunications Regulation Authority is informed, under the conditions defined in article L. 36-8 of the Postal and Telecommunications Code, of any dispute relating to the technical and tariff conditions for the exercise of a telecommunications operator activity or the establishment, provision or sharing of telecommunications networks and infrastructures referred to in I.

« Local authorities, their associations and the concerned telecommunications operators provide, at its request, the technical and tariff conditions subject to the dispute, as well as the accounting recording the expenses and revenues related to the activities carried out under this article.

« IV. - When economic conditions do not allow the profitability of the establishment of public telecommunications networks or a telecommunications operator activity, local authorities and their associations may make their telecommunications infrastructures or networks available to operators at a price below the cost of production, under transparent and non-discriminatory conditions, or compensate public service obligations through subsidies granted within the framework of a public service delegation or a public contract.

« V. - The provisions of this article do not apply to the establishment and operation of the networks mentioned in article 34 of the law n° 86-1067 of September 30, 1986 on the freedom of communication.

« On such networks, local authorities and their associations may provide any type of telecommunications services under the conditions defined in articles L. 34-1, L. 34-2 and L. 34-4 of the Postal and Telecommunications Code. »

III. - Article L. 4424-6-1 of the same code is repealed.

IV. - The infrastructures intended to support telecommunications networks created by local authorities or their associations in accordance with article L. 1511-6 of the General Code of Local Authorities, as well as the projects for the construction of such infrastructures whose public consultation has been completed as of the date of entry into force of article L. 1425-1 of the same code, are deemed to have been created under the conditions provided for in that article.

V. - The II of article L. 36-8 of the Postal and Telecommunications Code is supplemented by a 4° as follows:

« 4° The technical and tariff conditions for the exercise of a telecommunications operator activity or the establishment, provision or sharing of telecommunications networks and infrastructures referred to in article L. 1425-1 of the General Code of Local Authorities. »

Article 51

After article L. 2224-34 of the General Code of Local Authorities, an article L. 2224-35 is inserted as follows:

« Art. L. 2224-35. - Any telecommunications operator authorized by a local authority or a public establishment of cooperation for the distribution of electricity to install an aerial non-radioelectric structure on a support of a public electricity distribution network proceeds, in the case of replacement of this aerial line by an underground line at the initiative of the local authority or the aforementioned establishment, to the replacement of its aerial line by using the same underground structure as that built to replace the aerial structure. The common civil engineering infrastructures created by the local authority or the public establishment of cooperation belong to it.

« The telecommunications operator bears the costs of removal, reinstallation underground and replacement of the telecommunications equipment including cables, conduits and pull boxes, including the corresponding study and engineering costs. It bears the maintenance of its equipment.

« A convention concluded between the local authority or the public establishment of cooperation and the telecommunications operator sets the financial contribution of the latter based on the principles outlined above, as well as the amount of the fee it must pay, if any, for the occupation of the public domain. »

Article 52

I. - Article L. 32 of the Postal and Telecommunications Code is supplemented by two paragraphs as follows:

« 17° Local roaming.

« A local roaming service is one provided by a mobile radio communications operator to another mobile radio communications operator in order to allow, on a zone not originally covered by any second-generation mobile radio communications operator, the reception of the second operator's customers on the first operator's network. »

II. - The eighth paragraph (e) of A of I of article L. 33-1 of the same code is supplemented by the words: « or local roaming ».

III. - When local authorities apply article L. 1425-1 of the General Code of Local Authorities in the field of second-generation mobile radio communications, the zones, including town centers or priority transport axes, that they have identified as not being covered by any mobile radio communications operator are covered in second-generation mobile telephony by one of these operators responsible for providing a local roaming service.

By exception to the rule set out in the preceding paragraph, the coverage in second-generation mobile telephony in certain of the zones concerned is ensured, if all the mobile radio communications operators agree, by the sharing of the infrastructures made available to the operators by the local authorities under the aforementioned article.

The areas mentioned in the first paragraph are identified by regional prefects in consultation with departments and operators. In case of a dispute regarding the identification of these areas within a department, the affected areas will be identified through a measurement campaign conducted by the department, according to a methodology validated by the Telecommunications Regulation Authority. They are subject to a mapping, which is transmitted by regional prefects to the minister responsible for territorial development no later than three months following the promulgation of this law. The minister responsible for territorial development forwards the national list of identified areas to the minister responsible for telecommunications, the Telecommunications Regulation Authority, and the second-generation mobile phone operators.

Based on the national list defined in the previous paragraph and within two months following its transmission to the operators by the minister responsible for territorial development, the operators submit to the minister responsible for telecommunications, the minister responsible for territorial development, and the Telecommunications Regulation Authority a project for the distribution between areas to be covered according to the local roaming scheme and those to be covered according to the infrastructure sharing scheme, a project for the distribution of local roaming areas among operators, as well as a project for a forecast deployment schedule for masts and installation of radio communication equipment. The minister responsible for telecommunications and the minister responsible for territorial development approve this forecast schedule within one month following its transmission by the operators. The Telecommunications Regulation Authority expresses its opinion on the proposed distributions, which must not disrupt the competitive balance between mobile phone operators, within one month following their transmission by the operators. The entire deployment is completed within three years following the promulgation of this law.

The minister responsible for territorial development reports annually to Parliament on the progress of this deployment.

IV. - The network infrastructures established by local authorities in accordance with III are made available to authorized operators under technical and tariff conditions set by a decree in the Council of State.

V. - The telecommunications operator who ensures coverage according to the local roaming scheme in an area referred to in III concludes local roaming agreements with other mobile telecommunications operators and agreements for the provision of infrastructure and/or equipment with local authorities.

VI. - A provision of infrastructure agreement is concluded based on private law between the operator operating these infrastructures and the local authority, in compliance with the provisions of Article L. 1425-1 of the General Code of Local Authorities.

This agreement specifies in particular the conditions for maintenance and upkeep of these infrastructures.

VII. - After Article L. 34-8 of the Postal and Telecommunications Code, an Article L. 34-8-1 is inserted as follows:

"Art. L. 34-8-1. - Local roaming service is provided under objective, transparent and non-discriminatory conditions.

"This service is subject to a private law agreement between second-generation mobile telecommunications operators. This agreement determines the technical and financial conditions for the provision of the local roaming service. It is communicated to the Telecommunications Regulation Authority.

"To ensure equal competition conditions or service interoperability, the Telecommunications Regulation Authority may, after the opinion of the Competition Council, request the modification of already concluded local roaming agreements.

"Disputes relating to the conclusion or execution of the local roaming agreement are submitted to the Telecommunications Regulation Authority, in accordance with Article L. 36-8."

VIII. - The third paragraph (2°) of Article L. 36-6 of the same code is completed with the words: "and under the technical and financial conditions of local roaming, in accordance with Article L. 34-8-1".

IX. - After the 2° of II of Article L. 36-8 of the same code, a 2° bis is inserted as follows:

"2° bis The conclusion or execution of the local roaming agreement provided for in Article L. 34-8-1;"

X. - In the area where it provides a local roaming service, the mobile telecommunications operator provides at least the following services: call transmission and reception, emergency calls, access to voicemail, transmission and reception of short alphanumeric messages.

Chapter II

On Competitive Freedom

in the Telecommunications Sector

Article 53

After Article L. 113-3 of the Consumer Code, an Article L. 113-4 is inserted as follows:

"Art. L. 113-4. - Every voice telephone operator is required to offer, in a fair manner, to the consumer, when subscribing to a telecommunications service, an offer in which metropolitan switched calls are billed per second, starting from the first second, except possibly for a fixed connection cost.

"Consumers who have chosen a prepayment method benefit from billing per second, starting from the first second, for their metropolitan switched voice telephone calls. These consumers may benefit, upon request, from any other billing method offered by the operator.

"The billing of calls is subject to clear information prior to any service subscription, regardless of the payment method chosen.

"Consumers must be able to benefit from the aforementioned offers when concluding any new subscription starting from the first day of the sixth month following the promulgation of Law No. 2004-575 of June 21, 2004 for trust in the digital economy."

Article 54

I. - The Labor Code is amended as follows:

1° The first sentence of the first paragraph of Article L. 423-13 is completed with the words: "or by electronic voting, in the conditions and according to the procedures defined by a decree in the Council of State";

2° The first sentence of the first paragraph of Article L. 433-9 is completed with the words: "or by electronic voting, in the conditions and according to the procedures defined by a decree in the Council of State".

II. - The implementation of this article is subject to the signing of an enterprise agreement.

Article 55

A decree in the Council of State determines each year the list of social services providing users with special numbers accessible free of charge from fixed and mobile phones.

A range of special numbers reserved for this purpose is defined by the Telecommunications Regulation Authority, within six months following the promulgation of this law.

The Telecommunications Regulation Authority establishes, after public consultation, the pricing principles between operators and service providers to which the use of these numbers is subject.

TITLE VI

FINAL PROVISIONS

Article 56

I. - In the i of 1 of Article 65 of the Customs Code, the words: "to Articles 43-7 and 43-8 of Law No. 86-1067 of September 30, 1986 relating to freedom of communication" are replaced by the words: "to 1 and 2 of I of Article 6 of Law No. 2004-575 of June 21, 2004 for trust in the digital economy".

II. - In Article L. 621-10 of the Monetary and Financial Code, the words: "to Articles 43-7 and 43-8 of Law No. 86-1067 of September 30, 1986 relating to freedom of communication" are replaced by the words: "to 1 and 2 of I of Article 6 of Law No. 2004-575 of June 21, 2004 for trust in the digital economy".

III. - In I of Article L. 32-3-1 of the Postal and Telecommunications Code, the words: "to Article 43-7 of the aforementioned Law No. 86-1067 of September 30, 1986" are replaced by the words: "to 1° of I of Article 6 of Law No. 2004-575 of June 21, 2004 for trust in the digital economy".

Article 57

I. - The provisions of Articles 1 to 8, 14 to 20, 25 and 29 to 49 apply in New Caledonia, French Polynesia and Wallis and Futuna.

The provisions of Articles 8, 14, 19, 25 and 29 to 49 apply in the French Southern and Antarctic Lands.

In addition to the provisions of I of Article 22, Articles 35 to 38 and 41 to 49, which apply automatically in this territory, Articles 1 to 8, 14 to 20, 25, 29 to 34, 39 and 40 apply in Mayotte.

II. - The references to the Court of First Instance that appear in the articles made applicable by the previous paragraphs are replaced by references to the Court of First Instance. Similarly, references to codes or laws that are not applicable locally are replaced by references to the corresponding applicable local provisions.

Article 58

The provisions of this law apply in French Polynesia without prejudice to the powers assigned to this territory by the Organic Law No. 2004-192 of February 27, 2004 on the autonomy status of French Polynesia.

This law will be executed as a law of the State.

Done in Paris, June 21, 2004.

Jacques Chirac, President of the Republic:

The Prime Minister, Jean-Pierre Raffarin

The State Minister, Minister of Economy, Finance and Industry, Nicolas Sarkozy

The Keeper of the Seals, Minister of Justice, Dominique Perben

The Minister of Culture and Communication, Renaud Donnedieu de Vabres

The Minister of Overseas France, Brigitte Girardin

The Minister Delegate for Industry, Patrick Devedjian

The decree of the law having been issued, it is already in force

(1) Law No. 2004-575.

Community Directives:

Directive No. 2000/31/EC of the European Parliament and of the Council of June 8, 2000 on certain legal aspects of information society services and in particular of electronic commerce, in the internal market.

Preparatory Work:

National Assembly:

Bill (No. 528);

Report by Mr. Jean Dionis du Séjour, on behalf of the Economic Affairs Committee, No. 612;

Opinion by Mrs. Michèle Tabarot, on behalf of the Committee on Laws, No. 608;

Discussion on February 25 and 26, 2003 and adoption on February 26, 2003.

Senate:

Bill, adopted by the National Assembly, No. 195 (2002-2003);

Report by Messrs. Pierre Hérisson and Bruno Sido, on behalf of the Economic Affairs Committee, No. 345 (2002-2003);

Opinion by Mr. Louis de Broissia, on behalf of the Cultural Affairs Committee, No. 342 (2002-2003);

Opinion by Mr. Alex Türk, on behalf of the Committee on Laws, No. 351 (2002-2003);

Discussion on June 24 and 25, 2003 and adoption on June 25, 2003.

National Assembly:

Bill, modified by the Senate, No. 991;

Report by Mr. Jean Dionis du Séjour, on behalf of the Economic Affairs Committee, No. 1282;

Discussion on January 7 and 8, 2004 and adoption on January 8, 2004.

Senate:

Bill, adopted with modifications by the National Assembly in the second reading, No. 144 (2003-2004);

Report by Messrs. Pierre Hérisson and Bruno Sido, on behalf of the Economic Affairs Committee, No. 232 (2003-2004);

Discussion and adoption on April 8, 2004.

National Assembly:

Bill, modified in the second reading by the Senate, No. 1535;

Report by Mr. Jean Dionis du Séjour, on behalf of the Joint Committee, No. 1553;

Discussion and adoption on May 6, 2004.

Senate:

Report by Messrs. Pierre Hérisson and Bruno Sido, on behalf of the Joint Committee, No. 274 (2003-2004);

Discussion and adoption on May 13, 2004.

Constitutional Council:

Decision No. 2004-496 DC of June 10, 2004 published in the Official Journal today.

**Reader's comment that directed us to this publication in the Official Journal: **

The criminal liability of hosting providers and access providers is triggered for all content they publish on the internet (sites, forums, photo albums, etc.). Thus, they are implicitly required to monitor the content of their hosting and especially to immediately close access to a resource that has been reported as illegal, by anyone. The application of this measure would immediately lead to a very strong self-censorship by all hosting providers: at the slightest doubt about the legality of a site (e.g., copyright, defamation, etc.), its host will cut access to it to avoid ending up in a criminal court. But no host will have the human or financial means to conduct an exhaustive monitoring of the millions of pages it publishes, especially in forums, whose content is constantly changing. That is why the main French access providers (including Wanadoo, Tiscali, AOL, Club-Internet and Numericable) published a joint press release on January 13, stating that they would have to definitively close all the sites they host (personal pages, association sites, forums, photo albums, etc.) in order to comply with the law. In other words, to comply with the new French law, presented as the foundation of internet law, it would practically be necessary to destroy a large part of the French internet!

to prevent some "excluded" sites in France from reappearing a few hours later with a foreign host, a border filtering system is established (e.g., on the domain name). This content censorship, unique in the West since the Second World War, would bring France back to the level of China or Iran, which filter politically acceptable sites for their citizens.
email is no longer protected by the legal status of "private correspondence", which would allow anyone (your internet service provider, for example) to freely examine its content without facing legal consequences.

This incredible law is denounced by all actors of the French internet as the transposition of the requirements of the music industry to limit internet piracy (MP3 downloads). Indeed, with this law, it seems that the French government and parliament are about to sacrifice the freedom of expression and the right to privacy of the 10 million French internet users, at the expense of the financial interests of the music industry.

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