French Council of State: for a more ‘digitally-suited’ law?

When it comes to fundamental rights, the internet has two faces. In a nutshell, this is what Jean-Marc Sauvé, vice-president of the French Conseil d’Etat (CE) - the highest legal adviser of the executive branch and Supreme Court for administrative justice in France - writes in the preface to the CE’s most recent report1, Le numérique et les droits fondamentaux (“Digital affairs and fundamental rights”). The CE’s report, an imposing volume close to 500 pages in length, includes fifty proposals of measures that would contribute to the evolution of the French legal system into a more ‘digitally-suited’ direction.

As anticipated by Mr Sauvé’s preface, the dialectic between constraints and opportunities provided by the internet are emphasised throughout, noting that digital technology reinforces the capacity of individuals to enjoy certain rights, such as freedom of expression and economic freedom, but weakens others, such as privacy, security and safety. If the web leads the way to an unprecedented variety of forms of expression, culture and information, it also presents risks of discrimination, invasion of privacy or anti-competitive practices. Thus, there is a need to propose techno-legal measures that do not oppose fundamental liberties to either innovation or economy. A number of measures proposed by the CE, that I discuss in more detail below, are especially noteworthy.

Enshrine net neutrality into law

Net neutrality is at the core of several among the proposed measures. The CE suggests that this principle should be enshrined into law, following the examples of some other European countries (see Internet Policy Review news article on Slovenia; op-ed on The Netherlands). It also calls for a detailed definition of the specialised services for which operators can offer a quality of service superior to that of the ‘generalist’ internet, so as not to throttle innovation. The neutrality principle would concern both telecom operators and the ‘giants’ of multinational platforms. This is when the report suggests the creation of a new ‘juridical category’ for platforms, as these “cannot be subject to the same obligation of neutrality as electronic communications operators, as their role is to provide organised, hierarchical or customised access to content available on their website or to which they give access [...] in contrast, platforms should be subject to an obligation of loyalty to their users, both non-professional users in the context of consumer law and business users under the competition law” (p. 217).

Cautiously approach regulation of algorithms

The CE is cautious in its approach to the regulation of the conception, implementation and use of algorithms, recognising that it is unfamiliar territory for public authorities and one that, by design, does not lend itself well to be framed by traditional legal instruments. However, the report identifies - alongside its “utility for optimising the functioning of a number of services” - some possible “collateral damage” of algorithm implementation, from the perception of their infallibility by the public, to the in-built constraints into a customisation on which users have no control. The CE thus proposes some strategies, such as establishing due process and transparency whenever algorithms are used to make decisions vis-à-vis an individual, or develop control of the results produced by algorithms, in particular to detect the existence of unlawful discrimination (p. 343).

Deal with jurisdictional tension on EU level

The supra-national and international dimension of the internet and the possible application of law within it is also emphasised in at least two respects. First, the CE pragmatically points out that the application of national laws to the giants of the net, often headquartered in the United States, would be a true legal puzzle; thus, such a request should be limited to a handful of imperatives chosen for their particular importance in the protection of fundamental rights or the public order (p. 240), such as those defining the limits of freedom of expression (p. 243). Second, the CE demands the creation of a “chef de file” authority within the European Union, mostly dedicated to a better coordination among member states, and calls for a reform of the safe harbour agreement with the US, as well as an augmented cooperation with some countries with whom France shares a “convergence of values” (p. 24).

Report offers balanced approach. Now it’s the regulator’s turn

The CE’s study, published in early September 2014, comes at a delicate time for debates related to digital matters in France where a new ‘anti-terrorism’ law is about to become reality. The project for a new ‘anti-terrorism’ law, championed by French Minister of Internal Affairs Bernard Cazeneuve, has now been passed on to the Senate. This follows its approval at the National Assembly, which happened amidst great controversy (and a critical recommendation2 from the Commission on Rights in the Digital Age or ComNum, of which I am a member). The government is also in the process of launching a wide-ranging consultation3 on the ‘big questions’ of our digital times; the consultation should result in a project of a ‘digital law’ (loi numérique) in early 20154. Thus, the timing is good for the government to retain at least some of the CE’s proposals during this process. They will contribute to the adaptation of fundamental rights protection to ongoing dynamics such as the proliferation of data, the unprecedented centrality of big platforms in the shaping of the public sphere, and the transnational character of the internet.

The CE report singles itself out for its comprehensiveness and its balanced approach. Some proposed measures, such as the establishment of a new legal category for platforms, or a specific legal “framing” for the conception and implementation of algorithms, are of particular interest. Lawmaking vis-à-vis digital affairs has been conducted by French authorities in a relatively short-sighted manner in the past (and, one may argue, presently). Thus, the underlying principle of the report – proposing measures that do not oppose fundamental liberties to the drives of innovation and market – is welcome and needed, even if the impression that the writers of the report have been walking on a tightrope throughout its development is ever-present, and, one can presume, well-founded. Overall, with this report and the activities of several other instances such as the National Council on Digital Affairs (CNNum)5 and the ComNum, executive powers in France have at their disposal a number of interesting contributions to draw from, as they enter the consultation that will eventually lead to the Projet de loi numérique (“Digital law bill”) One can hope they will be kept well at hand.