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Deutsch: Französische DNS-Verwaltung muss verfassungsmäßige Freiheiten respe...
In a ruling issued on 6 October 2010, the French Constitutional Council affirmed the constitutional value of domain names. According to this decision, which applies to the whole French DNS, a domain name attribution, renewal, transfer or cancellation process must not only respect intellectual property rights, but also freedom of expression and freedom of entrepreneurship.
The ruling was issued in the framework of a new procedure, that allows questioning the constitutionality of an existing law in the course of legal proceedings related to the application of the given law. In this case, the plaintiff was questioning the constitutionality of article L.45 of the French Posts and Electronic Communication Code, adopted in 2004 as part of the French law on trust in the digital economy ('Loi pour la confiance dans l'économie numérique' or LCEN). This article provides that the French Domain Name System (DNS) registries are appointed by the government; that each French ccTLD is managed by a unique registry; and that the government ensures that domain names are attributed by these registries "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".
The ruling follows the plaintiff argument that the article in question was infringing Article 34 of the Constitution which provides, inter alia, that "law shall lay down the basic principles of (...) systems of ownership, property rights and civil and commercial obligations". Therefore, due to the absence of precise enough safeguards, Article L.45 of the French Posts and Electronic Communication Code gives the Administration and the designed registries too much latitude regarding the management of the French DNS. In particular, the Constitutional Council found that, as currently defined, the law indeed protects intellectual property rights but neither freedom of expression nor freedom of entrepreneurship, since the last two may be restricted by the registry through denial of a domain name registration or renewal, or through its transfer or cancellation.
AFNIC, the main French registry, manages the .fr as well as .re (Réunion Island), .pm (Saint-Pierre and Miquelon), .tf (French Southern and Antarctic Territories), .wf (Wallis and Futuna) and .yt (Mayotte). Other French ccTLDs are managed by different registries; .mq (Martinique), .gp (Guadeloupe) and .gf (French Guiana) are delegated to registrars; while.nc (New Caledonia) and .pf (French Polynesia) are administrated by the respective territories. The ccTLDs of the two other French territories (Saint Barthelemy and Saint Martin) have no assigned registries yet, and the corresponding domains (.bl and .mf) are not yet present in the root zone. All these registries have to comply with the provision of Article L.45 of the French Posts and Electronic Communication Code.
As a result of this decision, the law should now be amended by 1 July 2011. The Constitutional Council gave this delay in order to avoid a major disruption that would otherwise threaten the legal continuity and security of the French domain name space. After this deadline, any decision from the government and/or from the registries designed pursuant to current Article L.45 of the French Posts and Electronic Communication Code would be deemed illegal.
It must be noted that this ruling only concerns registries designated by the French government, according to the provisions having been found unconstitutional. It does not extend to any other ccTLD than that of the French national territory, nor to any gTLD. Furthermore, the Constitutional Council decision has no impact on the question of whether the registration of a domain name implies any property rights over this name or only the right to use this name for the registration period.
However, and this is the major outcome of this decision, such a ruling may be seen as a breakthrough from a political point of view for all those who consider domain names as one of the means of freedom of expression and communication in the digital environment.
French Constitutional Council decision and related dossier (only in French,
AFNIC (.fr registry) webiste
(Contribution by Meryem Marzouki, French EDRI-member IRIS)