Special issue: The new electronic communication law

Vol. 61, n° 7-8, July-August 2006
Content available on Springerlink

Guest editors
Isabelle de Lamberterie, CNRS, France
Xavier Strubel, GET/INT, France


Isabelle de Lamberterie, Xavier Strubel

From telecommunications to electronic communications law: query on a change of legal pattern


GET/ENST Bretagne – Technopôle de Brest-Iroise, 29285 Brest cedex, France

Abstract The sector-based model stemming from the regulatory framework for telecommunications, was extended to electronic communications, a term which takes into account the convergence of the telecommunications, broadcasting and IT sectors. At the same time, this model tends to dissolve in the general competition rules which are supposed to replace the sectoral regulation. Already, this regulation applies exclusively to operators having a significant market power on the relevant markets. But this competition model itself, is subordinated to general interest objectives, as universal service or cultural diversity. Thus, a new evolution is initiated, where the objectives of contents regulation could help to redefine some aspects of network regulation.

Keywords Telecommunication law, Communication law, Telecommunication regulation, European law, Competition law.

A new legal framework for electronic communications in France

Bertrand du MARAIS

UFR de Sciences Juridiques, Université de Paris X Nanterre – 200, avenue de la République, 92001 Nanterre Cedex, France ;

Abstract In 2004, the French legal framework applicable to telecommunications has experienced tremendous changes. The aims of these reforms were to transpose into domestic law the second European Telecommunications 2002 package and to complete the total change of France Telecom, the incumbent operator. On the one hand, this new legal framework fosters free entrance in the market. On the other hand, it builds a tighter control of operators in order to ensure effective competition.

Keywords Telecommunication law, France, Legislation, Universal service, Political aspect, Telecommunication operator.

Broadcasting and telecommunications: which convergences?


TOPFORMATION-MJB consulting, 11 place Maurice Thorez, 94800 Villejuif, France

Abstract Traditionally, broadcasting, telecommunications and information technologies have been distinct industries governed by three separate regulatory systems. As a result of the development of digitalisation occurring both at a technological and market level, all communications which use electronic transmission networks can send the same services : not only those provided by networks including broadcasting and telephony, but also “online services” like Internet for example. This phenomenon, called “convergence”, is generating profound variations to the traditional business and regulatory models. For several years, in spite of the technical and economical convergences reality, the judicial environment stay divided into sectors. We have to wait for European directives named « Paquet Telecom » and their recent transposition in French law for attending a beginning of the creation of an electronic communications services law. This article examines the impact of the phenomenon in terms of regulatory challenges and barriers.

Keywords Communication law, Broadcast, Telecommunication, Internet, Competition law, Regulation, Information technology, European law, ARCEP.

E-administration, interoperability, security and safety: the risks of ambivalence

Jean-Jacques LAVENUE

Université Lille 2, Faculté des Sciences juridiques, politiques et sociales de Lille – 1, place Déliot, BP 629, 59024 Lille cedex, France.

Abstract The notion of security and safety is eminently present when one considers the setting up of an e-administration and the concept of interoperablility which is assumed to be established. Hence it is revealed in two ways. Firstly, as the objective which is intended : interoperability becoming the means to gurantee security by combatting, or improving the struggle, against different perils : terrorism, immigration fraud, forgery and theft of documents, etc. Secondly, as the condition of its establishment : security thus being the duty owed to citizens and users to protect their rights, private life and the conditions for the use of such new e- administration instuments as electronic identity cards, biometric passports, shared medical files, public service ID cards, etc. These two dimensions of the notion of security, one of which comes within the framework of national security and the other of system reliability, are very obviously connected, yet they may result in contradictory dimensions which need to be controlled. The lack of strict regulations must not be overshadowed by the urgent need for public security. In this work we touch on several projects under way which may give rise to new fields of reflection.

Keywords Public administration, Interoperability, Internet security, Private life protection, Biometry, Smart card, Computer security.

Internet content regulation: what method?

Janine S. HILLER*, Ronnie COHEN**

* Virginia Polytechnic Institute; Finance, Insur., Bus. Law – 2120 Pamplin Hall, Blacksburg, VA 24061, USA
** Christopher Newport University – 1, University Place Newport News, VA 23606, USA.

Abstract The law and regulation of electronic communications in the United States (US) is fragmented, overlapping, and controversial, with overarching First Amendment limitations for government action directed toward content. Because the law was written for “legacy” systems of telecommunications without regard for the present convergence of the industry and media, there are different laws, different administrative oversight, and sometimes conflicting legislative policies depending on the delivery mechanism and media. Because of this complexity, this article focuses on content regulation of internet communications broadly defined, how it impacts providers of telecommunications, and conversely how the private actions of providers impact content regulation. We begin with a discussion of the First Amendment to the United States Constitution, as it is essential to an understanding of the limitations to federal regulation. Then, federal statutory attempts to regulate internet content are examined followed by a discussion of the applicable administrative law. The last section of the article describes how private entities have filled in the gap in the absence of government regulation by private terms of use, and in conclusion compares this approach to other regulatory mechanisms.

Keywords Regulation, Internet, United States, Legislation, Communication law, Public administration, Internet service provider.

European competition law in the electronic communications sector: evolution and critical analysis


* Grupo de Tecnologías de la Información y las Comunicaciones (GTIC), Dpto. SSR., E.T.S.I. Telecomunicación, Universidad Politécnica de Madrid – Ciudad Universitaria s/n. 28040 Madrid, Spain
** Dpto. Economía Aplicada e Hª Económica, Universidad Nacional de Educación a Distancia (UNED) – Pº Senda del Rey, 11. 28040 Madrid (Spain)

Abstract Following a preparatory process that lasted about ten years, on January 1, 1998, the telecommunication services market was completely liberalised in most European Union countries. It was obvious that in the telecommunications industry, competition could not be quickly established simply by knocking down the legal obstacles. As a result, the first regulatory framework tried to meticulously “conduct” the development of competition in the market. Nevertheless, this scheme evolved along with technology and market competition development. A new regulatory framework for electronic communications was approved in 2002; its main objective is the rapprochement of sectorial regulation towards general Competition Law, based on an ex post intervention. The article sumarises these regulatory changes and then focuses on the description and analysis of the main main novel instruments which are being applied under the current regime. Additionally, a critical assessment of the results achieved since its enforcement is made pointing out further challenges to be faced by its progressive practical implementation. The analysis of the weaknesses of the current model is particularly interesting at a time when the European Commission has already started the reform of the regulatory framework in force.

Keywords Telecommunication law, Telecommunication regulation, European law, Competition law, Economic market, Legislation, Evolution.

What kind of responsibility for the technical intermediaries on the Internet?

Valérie Laure BENABOU

Université de Versailles Saint Quentin, faculté de droit et de science politique – 3, rue de la Division Leclerc, 78280 Guyancourt, France.

Abstract The article tries to analyze the mechanisms of responsibility applicable to the technical intermediaries on the Internet, through the prism of the general tortuous liability. The main purpose is to define a method of application of the conditions of liability in the specific environment of Information Society. It is also aimed to identify the scope of the latter outside but also inside special regimes of liability on service providers or hosting entities.

Keywords Internet service provider, Responsability, Communication law, Legislation, Jurisprudence, Internet.

The cryptology in France from 1990 to 2005


GET/INT – 9, rue Charles Fourier, 91011 Evry cedex, France

Abstract The cryptology has been for a long time the fact of the army. The cryptography was considered not as a mean of communication but as a weapon. Nowadays, in France the cryptography can be used with a free access. The supply, the importation and the exportation of means and services of cryptology have been liberalized. The purpose of this article is to study the relations between liberty and security in the frame of the cryptology, for France. The process of liberalization can be explain by the deregulation in the telecommunication field for a small part, and by the emergence of the electronic trade for the biggest part. The security has not been forgotten. The cryptology is not a tool as the others. Some few restrictions of authorizations and declarations have been maintained. The non respect of these restrictions can generate sanctions not always used. The relation liberty/security appeared also in the electronic signature, adopted by the European Union in 1999 and in the European countries, especially in France. The electronic signature, by the way of the certification services need to use the cryptology, to be recognized and protected. The industrials have succeed, with the liberalization of the cryptology and their software, to build a famous system, not already finished: the security of the society information.

Keywords : Cryptography, Regulation, Deregulation, e-business, Evolution, Legislation, Criminal law.

The digital signature dilemma

Jean-François BLANCHETTE

Department of Information Studies, University of California, Los Angeles, Box 951520, Los Angeles, CA 90095- 1520, USA

Abstract The last ten years have seen an enormous amount of legal, regulatory, and technological activity aimed at designing a proper electronic equivalent to handwritten signatures. One such design, that of cryptology-based (or digital) signatures, has succeeded over other solutions to the point where, in certain legal systems, such as those of the Member States of the European Union, electronic signatures are almost exclusively understood to be based on public-key cryptography. Yet, several archival institutions (including the National Archives of Canada, Australia and the US) have expressed ambivalence at the prospect of preserving digitally signed records. This paper argues that discrepancies between technical, legal and archival responses to the problem of long-term preservation of digitally signed documents are founded on diverging understandings – physical vs. contextual – of electronic authenticity.

Keywords Digital signature, Electronic filing, Cryptography, Law.

Consumers and electronic communications laws in Europe and England: reaping the rewards of the new regulatory framework

Christine RIEFA

Brunel University, England.

Abstract This article addresses the extent to which the new regulatory framework protects the interests of consumers in the EU and more particularly in the UK. It identifies three means through which consumers are to reap the rewards of the new framework. First of all, effective competition in the electronic communications sector will provide consumers with a market able to deliver value for money. In addition, the Universal Service Directive 2002/22/CE and its set of specifically targeted rules will directly impact consumer protection. Finally it is via the devolution of powers to the National Regulatory Authorities by the Framework Directive 2002/21/CE that consumers will feel the full effects of the new regulatory framework.

Keywords Communication law, Telecommunication regulation, Competition law, Universal service, European Union, United Kingdom.

Privacy protection in networks: from alarmists paradigms to effective guarantees


Université de Montréal, Faculté de droit, Centre de Recherche en Droit Public (CRDP) – Pavillon Maximilien- Caron, 3101, chemin de la Tour Montréal (Québec) H3T 1J7, Canada

Abstract Actualization of legal approaches are needed to protect effectively the right of privacy. In network environments, data circulates and it is persistent. Trying to prevent misuse by hindering circulation is less and less effective. Legal framework must be reframed in order to improve guarantees of quality of information used to take decisions about individuals. In network universe, information is persistent and circulating. Trying to prevent information circulation just in case that it would be misused is a costly and inefficient approach. Privacy protection is weakened by faulty targeting of privacy law based on approaches prevailing in the 1970s and 1980s. Those approaches deny that it is legitimate for some information to circulate in public spaces, but do not provide effective protection for information truly relevant to privacy. The risk of ending up with a set of rules incompatible with the requirements of government seems sufficiently serious to justify assessment of the current legal framework and approaches that could increase its effectiveness. Given the inflexibility resulting from inappropriate interpretations, both government officials and legislators have had to resort to expedients, such as consent management and legislation establishing exceptions, thereby weakening protection for personal information. Worse, by paying little attention to effective enforcement of privacy legislation in situations where there is great risk of violation, we have failed to strengthen regulations against practices that truly invade privacy. Effective modernization of privacy legislation requires a critical rereading of the legislation’s foundations and how it has been enforced. This demands a lucid evaluation of the contexts in which information circulates. We will only weaken privacy rights if we take refuge in a faint-hearted defence of formal mechanisms inherited from earlier times. If we take that approach, we will increase the risk of ending up with ever more illusory protection.

Keywords Private life protection, Information technology, Private life, Management information system, Information transfer, Internet, Computer science law