INTERNET INTERMINISTERIAL COMMISSION
chaired by Madame Isabelle Falque-Pierrotin

16 March 1996 - 16 June 1996

• Introduction
• Two observations
• Four convictions
• Seven propositions
  1. A preference for a system of self regulation rather than external regulation
  2. Clarify the responsibilities of those involved
  3. Develop international cooperation
  4. Encourage the development of electronic commerce
  5. Set up a watchdog body, a committee for online services
  6. Encourage information, training and mobilisation of those involved
  7. Encourage greater presence of France and the French language on the network
• Conclusion

Introduction

The development of networks open to the public like that of the Internet is an important phenomenon of the end of this century: approximately 40 million people are connected, with perhaps 200 million by the year 20. These networks offer exceptional possibilities of exchange and knowledge acquisition; they open new roads to growth and job creation; they can be tools for development.

At the same time, they conceal the risk of errors which could be contrary to the respect of human rights; they upset traditional public and private functioning methods, and finally, they raise new questions for western democracies. These questions are ethical, cultural, economic or legal, and they are, in all cases, political as our choices for the years to come depend on the answers to these questions. Certain governments apprehend this new world in creation and the temptation to regulate the Internet is evident here and there.

In this context, the French Government, on the initiative of Minister François Fillon and Minister Philippe Douste-Blazy, wished to have a clearer idea of the current legal tools available to France with respect to this new communication and services domain, with two main concerns, the protection of the individual and public order on the one hand, and consumer protection on the other. An interministerial commission was thus set up on 16 March 1996 chaired by Madame Isabelle Falque-Pierrotin, Master of Petitions of the Council of State, with a view to studying the legal and regulatory framework applicable to the Internet and make different types of proposal to adapt current laws or introduce new ones.

Apart from the contributions of various Ministries, more than 40 professionals were consulted; from 6 to 9 May 1996 a study mission was carried out in the USA where the market is more mature than in France, and where there have been some experimental attempts at regulation on the Internet; two days of exchanges with the European Commission departments which are implicated allowed us to ascertain the Community position; finally, the commission's work was enriched by the contributions collected during an electronic consultation organised by the French chapter of the Internet Society from 3 to 7 June 1996.

It is evident that this work only represents a first phase: it would be impossible to hope for a comprehensive list of questions raised by the Internet after less than three months work; the report does not cover certain subjects, however essential, such as protecting author's rights; in fact, it aims more to propose a methodology for better comprehension of the Internet, a general philosophy making it possible, in the time which ensues, to resolve some of the problems on a case by case basis.

What then are the main conclusions and propositions of the commission?

Two observations to begin

It is necessary, in the first place, to recognise the specific and deeply innovative character of the Internet which prohibits the automatic transposition of pre-established ideas; the Internet is not part of the broadcasting or telematics domain; it upsets the classic definitions of the right to communicate founded on the distinction between private correspondence and audiovisual communication; it is in reality a world of users, for the most part identified, who cross different interconnected networks, using a non-proprietary communications protocol to seek the information and services they need and to retrieve information. It is this logic of supply and demand which founds the sociology of the network and its evolution from a closed world of specialists and experts to a common and commercial universe open to the general public which it is becoming today.

In the second place, it must be admitted that current French law, with some adaptation, offers a relatively satisfying reply to the concerns for legal gaurantees evoked above; there is not a legal vacuum therefore, but rather a plethora of articles of common law which are applicable to the Internet; the priority therefore is to modify certain provisions of the law so as to adapt them to online services, and to apply them; in fact, the international aspect of the network, the fugitive nature of the content and the extremely rapid evolution of the techniques and strategies raise specific difficulties for the application of penal and commercial law that ought to be resolved, the main questions being how to determine which laws apply, who is responsible, and what proof is required.

Once the observations are made, what can be done in France?

Four convictions for a methodology

• a uniquely National approach would be an illusion
• a gradual and concerted approach seems necessary: the instability of usage and of the technology making it difficult to appreciate the legal aspects and to define categories, the current legal arsenal allowing for the gaurantee of respect of the principal individual liberties and public order on French soil, it would seem appropriate, in the short term, to analyse and to understand the evolution of this new market.
• no single approach would be efficient: there is no remedy, no single solution to respond to the question of content control on the Internet; various types of approach, through contracts, consensus, education, and the spread of information must underpin the legal and regulatory framework; these correspond to the sociology of the network and, in some cases, respond more efficiently to ethical necessities.
• finally, any policy should be oriented in a positive way, in a proactive way, to the development of French services on the Internet, rather than limited to a defensive arsenal.

Once these principles for a methodology are established, it is important to define France's objectives with regard to the Internet, as those objectives will define the conditions for any regulatory framework set up.

France is behind the European leaders, and a long way behind the USA, in terms of development of the network; given the exceptional potential, this must be remedied and a rapid development of online services must be encouraged; however, these services do not represent the development of a new technology alone; their success and their universal nature means they represent a new social space which justifies the elaboration of new behavioural rules, rules for a "new civility". French tradition abounds with humanist values, including respect for each person's rights and liberty; it is important then to encourage this on the Internet so that it may be a tool for progress and enlightenment rather than synonymous with danger.

With these objectives in mind, the propositions could be as follows.

1 - A preference for a system of self regulation rather than external regulation

Through its structure, interconnecting more than 70 000 networks, and its current operational mode, it seems that the Internet fits with difficulty into an administered control structure of the a priori type: no single authority manages the flow of data, anyone can, at any moment, on their own initiative, transmit and receive information; in short, information does not recognise borders. In these conditions, it is difficult to see how restrictive regulations, including authorisations and obligations on content, could be established as exists for television in the name of a penury of frequencies,.

From this point on, the objective will be, on the one hand, to set up efficient a posteriori control which would be best to produce a type of justice that reacts more quickly and is more aware of what is at stake on the Internet; an information circular could be sent to all the courts, and a new injunction procedure could be set up for litigious servers; moreover it would seem desirable to establish dedicated inquiry units for this type of offence. On the other hand, self regulation by those involved must be encouraged, either through provisions for parental filtering or classification of services, or through the elaboration of a code of conduct by the professionals themselves, setting out rules for transparency, for responsibility, and for the respect of the legal framework. A similar code of conduct was adopted by access providers in Great Britain; this must be taken up by their French counterparts and extended to electronic publishers and traders and to all who offer online services; finally, it is necessary, through contracts between access providers and subscribers, and between publishers and server providers, to encourage the adoption of standard clauses that gaurantee the respect of the individual and the consumer.

2 - Clarify the responsibilities of those involved.

This question only concerns audiovisual online services and can only be resolved by adopting the following two postulates: in the first place, the publisher, producer of the online information is, in the main, responsible for that information; it is necessary therefore to be able to identify the producer at all times, with anonymous consultation remaining possible; in the second place, one can only be responsible for what one can control, which justifies exonerating access providers from penal responsibility when their contribution is purely of a technical nature. From that point on, the only alternative which remains is a choice between a system of cascaded responsibility, adopted in the press and audiovisual domains, and a system of common law responsibility. Currently under examination, it appears that this alternative is more on the political than the technical level.

Given the risks of relocation of online activity in the case of presumption of responsibility, even by default, of the accommodating server, the commission recommends the adoption of a system of common law, as it is much simpler and better adapted to the empirical and gradual approach which the Internet requires.

3 - develop international cooperation.

This is decisive for the future of the Internet given that this new communication space reaches beyond National borders and puts the territorial basis of application of the law into question.

Cyberspace can only really organise itself and define common operational rules and values through international negotiation on electronic publishing, which is desired moreover by the private sector. Negotiation of this sort must be translated at the same time by increased mutual aid in legal matters, and by adopting common principles not so much with regard to content but with regard to a methodology for dealing with certain questions, notably questions of responsibility and which laws are applicable.

Legal cooperation could lead to the application of certain propositions in the Council of Europe's recommendation 95 R 13 on penal procedures relative to information technology, the elaboration of an ad hoc extradition and mutual aid agreement with the USA where most servers are located, the creation of an information exchange mechanism of the Interpol type.

If we wish to broaden cooperation, the European Union is evidently the international organisation in the best position to begin such harmonisation; a directive setting out minimal ethical rules to be respected, and adopting the principle of the law of the country of emission of information for member States, and of reception for others, could be elaborated; the work of other international organisations such as the ITU, the Council of Europe, and the OECD must be continued; the members of the G7, finally, could affirm their implication in the potential gain that the Internet represents today, and decide to set up an informal advisory unit that could issue recommendations for the guidance of national choices.

Finally, it is necessary to develop international cooperation through the Internet organisations themselves, and notably the Internet Law & Policy Task Force in order to encourage the creation of common descriptive terms for Web services, to facilitate transparency which would benefit users; also to work on names so that they respect trademarks and the possibility for all to have a permanent worldwide address.

4 - encourage the development of electronic commerce

Because of the formal nature of the protection that they propose, current laws on electronic commerce seem to be difficult to reconcile with the instantaneous aspect of electronic commerce regarding intangible goods; consumer protection will be organised therefore less in a centralised and uniform way then through contracts and adapted technical mechanisms; it is necessary therefore to encourage the elaboration of standard contracts by professional organisations or the AFCEE (French Association for Electronic Commerce and Exchange), to work for the recognition of the validity of an electronic signature, and to consider establishing a "sales tax" to be levied on the destination country so as to limit evasion apparent today in the commerce of intangible goods; it is necessary, finally, to accept the intervention of a third party of confidence in transactions, this "cyber lawyer" guaranteeing the solvency of the purchaser and that the vendor is honourable, providing the confidential service outlined in the new law on telecommunications regulations, making a transaction secure and keeping a record of it.

5 - Set up a watchdog body, an online services committee

If, on the one hand, the administrative regulation of the network seems be excluded, on the other hand, the establishment of a body to survey, analyse and mediate seems useful. This body will advise the government on online services and will make recommendations of an ethical nature; it will receive complaints from users and, on a request from users or from the government, will be able to rule on litigious sites, and these rulings could be transformed into a penal procedure; it will also play the role of mediator so as to limit the number of legal proceedings; the committee will develop links with public and private international bodies that are competent in Internet affairs. Its structure will be limited, relying on associations, study groups and experts; finally, it will have to coordinate its action with existing regulatory bodies, the CST (High Committee for Telematics) which it will substitute for; the CSA (High Council for Broadcast), so that a common ethical approach is adopted whatever the medium of communication.

6 -encourage information, training and mobilisation of those involved.

As a new form of worldwide relations, of worldwide intimacy, the Internet requires an apprenticeship to a new civility corresponding to the function of the network; information and awareness campaigns must therefore be launched by family associations in particular, and a Memo on Rights and Obligations on the Internet must be published by the Government; the Ministry of Education must include in its programmes a course on these networks (Edunet) as soon as possible, a course aiming not only to inform, but also to develop the critical faculties of children; town councils should provide premises at no cost to allow free access to the Internet (Resothèques) so that users can become familiar with the Internet, and access information supplied by institutions and government departments. Finally, why not consider a toll free number for the Internet?

Apart from this educational programme for the general public, it is necessary to train and mobilise government departments: an interministerial coordination and impetus mechanism seems necessary both to allow each ministerial department to answer the new questions raised by the online networks and, for its own benefit, to enjoy their advantages. This delegation will propagate government Internet policy, and should coordinate its action with the online services committee around action which is more ethical, echoing the views of the profession.

Finally, the private sector must mobilise through professional bodies, chambers of commerce, etc., as each sector runs the risk of seeing its operation profoundly called into question by the emergence of these new networks.

7 - encourage greater presence of France and the French language on the network.

Today, the Internet is an Anglo-Saxon network: 80% of servers are North American and 90% of exchanges take place in English. Apart from its translation in economic terms, this fact implies choices for normalisation and regulation that do not necessarily correspond to the French or European approach and values. It is necessary therefore to be present on the network in the non-government organisations that already exist and participate in the discussions underway. The best defence against the Internet, if danger there is, is to be on it! To this end, France has an exceptional potential based on its Minitel experience and competence; the Minitel industry must benefit on the Internet from its advantageous position and develop new services as soon as possible. For French users, a quality French server will always be more attractive than a foreign server; it is necessary therefore for French industry to mobilise with regard to content as well as network applications. Moreover, it is necessary that French representation be greater than it currently is in places where the evolution of the networks are discussed: today there are only 100 French representatives for five thousand members of the Internet International Foundation and very few in the technical organisations (Internet Architecture Board and Internet Engineering Task Force) or the Internet Society.

Finally, it is necessary to pursue the establishment of "French language areas" as these provide a means to encouraging respect of the individual rights and liberty to which we are so attached; also to reinforce the role of French as a vehicle language for communication on the Internet in order to increase the number of exchanges in French currently recorded (2%).

Conclusion.

Some of these propositions have already been applied through government amendments introduced in the new law on telecommunications regulations: this concerns the principle of parental control and the exoneration from penal responsibility for access providers unless they have not offered a mechanism for parental control to their subscribers, or if they have given access to a service which has received a negative ruling from the CST (High Committee for Telematics), or if they knowingly give access to a litigious server.

The work must be continued. In legal terms, firstly by studying the adaptations necessary to each of the areas of the law; perhaps the moment would be right to begin reflection on communication law which has been based up to now on the related technology, and to articulate it through a number of major concepts, common to the full range of media. It is also necessary to continue the non-legal work so as to reap all the benefits of this new communication space and world service.

The Cyber world is alive with multiple initiatives and sometimes goes beyond French Cartesian logic. It is difficult to grasp and is worrying because of this; nevertheless, in the final analysis, the Internet is us, through our usage and our needs; there is therefore no determining the evolution of the network, in a positive sense, bringing so many benefits, or in a negative sense, symbol of deviation. Complementary solutions must be found, with, on the one hand, the legitimate action of governments to ensure that their citizens are protected in conformance with their values, and, on the other hand, the establishment of an operational mode by the network itself which favours its development.

© Secretary of State for industry - France