The ART's opinion on the digital economy bill



24 December 2002

ART has been called on for an opinion on the digital economy bill. So at its board meeting of 3 December 2002, ART presented its observations on the law and jurisdiction for on-line communication services and for the implementation of an additional authorisation policy for satellite systems.

Firstly, ART notes that the bill presents public on-line communication services as a "subset" of audiovisual communication. However, ART must point out that public on-line communication services do not fall completely under the scope of the modified law of 30 September 1986 regarding the freedom to communicate.

ART stresses the distinction between the audiovisual communication regime, based on "making available to the public or categories of the public" and the private correspondence regime, based on transmission "intended for one or more identified and individual private or legal persons". Given the mixed nature of certain Internet services, this criterion might generate application difficulties for certain public on-line communication services and would continue to require a case-by-case examination. For example, an electronic commerce transaction includes first consulting a catalogue made available to the public, covered by audiovisual communication then placing an order, which is covered by private correspondence. This is why ART considers it indispensable that the bill clearly identify the public on-line communication services covered by audiovisual legislation.

It also insists on the distinction between access and content: while public on-line communications might be covered by content regulation, access services to public on-line communications fall under the Post and Telecommunications Code. Given this, the legitimate concern to apply certain content regulation mechanism to audiovisual communication on-line services under the law of 1986 does not justify and does not necessarily require a global definition which would amalgamate very different situations in order to assimilate them in audiovisual communication.

Secondly, ART issues a totally unfavourable opinion on the implementation of a new authorisation policy for satellite systems by the French Agency for Frequencies. In particular, ART emphasizes that, if adopted in its current state, the bill would create a dual regulation mechanism, which would cause unnecessary complexity, or even legal disputes at the very time where new Community directives aim to harmonise and simplify national systems.

 


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