[governance] French Constitutional Council - French ccTLD

Thu Oct 7 17:31:38 EDT 2010

Hi Mawaki,

Le 7 oct. 10 à 19:45, Mawaki Chango a écrit :

> 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.

Yes, exactly, this is called 'incompétence du législateur' in French,  
referring to Art.34 of the French Constitution, which is about the  
fact that freedoms can only be limited by law, i.e. not by an  
administrative or a private body. In this case, AFNIC the French  
registry, established by an administrative act ("arrêté") has the  
power to limit freedoms through, inter alia, its naming charter.

FYI, the plaintiff first challenged the administrative act before the  
Conseil d'Êtat, then, in the course of this proceedings, raised the  
constitutionality question. It has to be noted that the question was  
considered receivable by the Conseil d'Etat, thus transferred to the  
Constitutional Council (as there are filters in this procedure,  
before one reaches the Constitutional Council).

> 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).

The law refers to the fact that when you register a .fr, you have to  
show that you've intellectual property rights over the name you  
register (such as bylaws, trademark registration, etc.). AFNIC  
charter is at: http://www.afnic.fr/data/chartes/charte- 
fr-2010-03-16.pdf. If it's the name of an individual, you have to be  
French citizen or to live in the country, and of course to show that  
it's your name.

> 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.

Exactly.

> 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).

This is because the annulment of the law article makes the AFNIC  
illegal. You can figure out the mess if it takes immediate effect.  
The Council says it explicitely that, with this delay, it gives the  
Parliament the time to modify adequately the law, so that the AFNIC  
is still legal but with stricter less flexibility on the domain  
naming conditions. Thus, the delay ensures legal continuity and  
security of the French domain names system.

> The case is about .fr ccTLD.

Note that this also applies to the .re (Reunion Island), .pm (Saint- 
Pierre et Miquelon), .tf (French southern and antarctic  
territories), .wf (Wallis and Futuna), .yt (Mayotte), which are  
managed by AFNIC as well; while .mq (Martinique), .gp  
(Guadeloupe), .gf (French Guyana) are delegated to a registrar,  
and .nc (New Caledonia) and .pf (French Polynesia) are administrated  
by the respective territories  -- well, that's rather complex,  
different political and administrative status.

> 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.

I don't understand what you mean here? The decisions applies to the  
registry, not the registrars. The art. 45 of the law that was found  
unconstitutional speaks of the "national territory". This territory  
includes e.g. Martinique, which is not managed by AFNIC, but by a  
registrar by delegation. This registrar here acts, exceptionally, as  
a registry. The ruling doesn't concern registrars in their usual  
functions.

>
> 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?

The ruling is an annulment of a given law article (art. 45 of the  
Posts and Telecommunications code), thus concerns the registries  
designated by this article. It doesn't extend to gTLDs, whether used  
by French citizens or not.
 From a legal point of view, there is no application to any gTLD nor  
to anyother ccTLD than those mentioned above. From a political point  
of view, hovewer, one can hope such a ruling might be used those who  
would like to see more respect for fundamental freedoms in ccTLDs and  
gTLDs management.

Best,
Meryem

>
> 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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