[governance] French Constitutional Council - French ccTLD

[Mawaki Chango]

Hi,

It appears that the plaintiff was making a negative case (certainly a
pre-emptive one as may often the case when the mere constitutionality of a
law is the question). That is: property, communication and
entrepreneurship rights guaranteed by the constitution may be infringed due
to the *absence* of safeguards in the law that gives the Administration and
its designee a carte blanche regarding the assignment and management of
domain names under .fr.

The Posts and Electronic Communications law refers to the intellectual
properties (presumably of others) which domain name holders are expected to
respect. It is not clear to me whether they mean to suggest there are
intellectual property claims to be had over the domain names themselves (and
I'm not sure either that's what you're saying they meant, Meryem, as your
related statement might suggest).

To my understanding, the Council recognizes here that the Internet including
the management of its domain names may have a significant impact on existing
constitutional rights (property, communication and
entrepreneurship). Therefore, a law that codifies the authority of managing
the Internet domain names would need to include more protection for those
constitutional rights than a minimal and vague clause that only requires a
management in the general interest, according to non-discriminatory rules
and provided that domain name registrants respect property rights.

In concluding, the Council gives the government until July 1, 2011 to amend
or in fact repeal the law. Starting from that date, any decisions taken by
the government and its designees pursuant to that legislation will be deemed
unlawful (in the mean time, decisions taken before then cannot be challenged
on the basis of this ruling).
The case is about .fr ccTLD. However, in the event the distinction
registry/registrars applies here regardless of the labels used (it seems at
times in the wording of the ruling that several entities are concerned with
managing the .fr), I would assume that the original law and this ruling by
the Constitutional Council are applicable to all the .fr wholesale and
retailing business -- as opposed to only the ccTLD administrator/ registry.

Another question is, how much of this ruling might be relevant/applicable in
the case of gTLD names used by French citizens in usages and business
related to their property, communication and entrepreneurship rights?

Best,

Mawaki
On Thu, Oct 7, 2010 at 9:47 AM, Meryem Marzouki <meryem at marzouki.info>wrote:

> 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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