A draft executive order would give various French government agencies the power to take down or block Internet content they deem harmful. Critics see a vast censorship scheme that would allow for “arbitrary” take-downs.

The order will implement Article 18 of the 2004 Law for Trust in the Digital Economy (LCEN), which provides for “restrictions” of e-commerce “in case of violation, or where there is a serious risk of violation, of the maintenance of public order, the protection of minors, the protection of public health, the preservation of interests of the national defense, or the protection of physical persons.”

As PC Inpact (in French), which broke the story, has pointed out, however, the definition of “electronic commerce” provided in the LCEN is “misleading.” In the words of Article 14 of the LCEN, “also within the scope of electronic commerce are services such as those which provide online information, commercial communications and search tools, access and recovery tools, access to a communications network or data hosting, even if they are not paid by those who benefit from them”. PC Inpact and digital rights organization La Quadrature du Net have therefore argued that the bill puts “the entire Internet” under government censorship.

Based on the aforementioned provisions of the 2004 law (to which the critical Article 18 was added in 2007), the draft executive order that spurred the current controversy defines possible measures as well as the government agencies that would be able to impose them.

In its current form, the order would empower several ministries that are not directly involved in Internet regulation to take measures against websites they judge to be harmful: The Ministries of Defense, of Justice, of the Interior, of the Economy, of Communication, of Health, and of the Digital Economy, as well as the National Authority for the Defense of Information Systems, formerly known as ANSSI. These ministries would be able to start a three-step process:

First, the operator of the website will be requested to cease publication of the content in concern or block access to it, or to remove it from the net entirely.

If there is no reaction within 72 hours, the hosting provider will be notified to delete the content or block its publication.

If there is no reaction from the hosting provider, ISPs will be prompted to block the website.

In case of an emergency, this three-step routine could even be bypassed so as to directly order ISPs to block the respective content. Contrary to the HADOPI law, which allows for termination of the Internet access of copyright infringers, ISPs would be compensated for their efforts. If any party does not comply with the orders, they would face a fine of up to 1.500 Euros, as well as confiscation measures.

The draft order became public after France’s new, business-dominated “National Digital Council” (in French) commented on the proposal. Among several points of criticisms are notes on the responsibility of technical intermediaries (which the French Constitutional Court restricted to clearly illegal content in 2004), the danger of misuse of the emergency clause, and the recommendation to clarify the notion of the “author” of a website. Perhaps most important is the claim that the order would create a pre-emptive censorship scheme, as hosting providers, when threatened with sanctions, would be compelled to conduct general surveillance of contents.

Digital rights organization La Quadrature du Net has been even stronger in its criticism. A representative from La Quadrature du Net, Jérémie Zimmermann, commented: “[t]his draft executive order aims to give the government a vastly disproportionate power to censor any website or content on the Internet. It is an obvious violation of the principle of separation of powers, and strongly harms freedom of communication online. This is an extremely disturbing drift, in direct continuity with the French government's repressive Internet-related policies.”

The executive order still has to be approved by the French Council of State, which will have to decide whether Internet censorship authorization can be extended to such an extent by a mere executive order. Meanwhile, the National Digital Council has also pointed out that, as e-commerce legislation is to be harmonized on EU level, the draft should get approval by the European Commission.