[governance] French Constitutional Council - French ccTLD

[Meryem Marzouki]

Hi all,

A very important ruling was published yesterday by the French  
Constitutional Council on the .fr management. This is in the  
framework of the new procedure, where one can question the  
constitutionality of an already adopted law, in the course of legal  
proceedings related to the application of this law.

The plaintiff was questioning the constitutionality of an article of  
the telecommunication code, adopted as part of the French e-commerce  
law (2004), and related to the transfer to the AFNIC the whole  
management of .fr domain names, including through the establishment  
and application of the naming charter.

The council ruled that this article is unconstitutional, in that the  
legislator, by only providing that the domain names should be  
attributed "in view of the general interest, according to non  
discriminatory rules made publicly available and ensuring the  
respect, by the domain name holder, of intellectual property rights",  
has not guaranteed the freedom of communication and the freedom of  
entrepreneurship (both in case of domain name attribution and  
removal, e.g. following a UDRP procedure -- there is one for the .fr.

The major outcome of this decision is the constitutional recognition  
that domain names have not only an interllectual property value, but  
also a value in terms of freedom of expression and communication as  
well as in terms of freedom of entrepreneurship (when a domain name  
is e.g. transferred or removed).

In its ruling, the Council makes reference to its decision on HADOPI/ 
3 strikes law, where it already affirmed the freedom to access the  
Internet.

The whole documents are (in French as for now) at:
http://www.conseil-constitutionnel.fr/conseil-constitutionnel/ 
francais/les-decisions/acces-par-date/decisions- 
depuis-1959/2010/2010-45-qpc/decision-n-2010-45-qpc-du-06- 
octobre-2010.49663.html

Best,
Meryem
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