What you need to know about the bill for a French digital Republic

Sep 30, 2015
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ob_62f77d_33b600-2da5b24bf4b04b5e3717585c77eabff3-png-srz-5The « Projet de loi pour une République numérique » is finally in the starting gates after it was first announced in autumn 2012. What makes this bill special is that, from now on, and for the next three weeks, it will be open for public debate and proposals. An online consultation platform, designed by the French start-up Cap Collectif, has been instituted to present the bill article by article and to offer several levels of interaction. Every subscriber of the platform is free to give an opinion on the various provisions of the text and make proposals for amendments, which are themselves subjected to the views of the online community.

Indeed, every citizen has the possibility to propose himself an article as well as to approve or disapprove every single disposition of the bill. Contributors can discuss the appropriateness of any proposition online and debate around the necessary changes.

The government promises to respond to the twenty proposals that collect the most votes and to the sixty most popular amendments. Their authors will be welcomed in person by Axelle Lemaire, Secretary of State for Digital Affairs, and some of these propositions might be in fine integrated within the bill. The “projet de loi pour une République numérique” is a potentially very important law that reaches out to many sensitive areas and aims to improve every citizen’s rights by adapting the legal frame to the realities of the twenty-first century. More precisely, the bill turns around three principal axes.

A broad range of rights at stake with potentially important legal implications

First, the projet de loi aims to enhance the availability of open data, mostly to the pleasure of citizens, private innovative businesses and of course start-ups. The principle inscribed in the law is indeed to open public data by default, and the exception to restrict the opening for a limited number of reasons (public security, national defense, privacy, industrial confidentialty etc..). Additionally, access will be granted to any information (public and private) considered to be in the public interest. This measure is supposed to make a significant amount of public information available, particularly in the education and research field which are until now mostly reserved for a very specific audience.

Second, the bill aims to establish equality for net users and to insert the principle of net neutrality to guarantee equal treatment of all data. In this context, the law implements a reinforced principle of protection of private data, based on the 1978 law. Besides, a right to be “entirely” forgotten is considered to be granted to minors and it is supposed to amount to the suppression of their online information if necessary. Considering how difficult it is to delete data (not just to erase from a search result) as well as for multinational enterprises to conform to French data protection law, this is, however, going to be a very difficult task. Moreover, digital platforms (search engines, price comparators), which are neither considered to be hosts nor publishers, should be obliged to deliver a fair, loyal and transparent information on their terms of use and classification. To ensure the implementation of these rights, the powers of the CNIL, regarding both the powers to pronounce a sanction and the necessity to be consulted on any subject within the framework of its expertise, shall be reinforced.

Third, the bill proposes a set of rights based on the recent legal advances in French and International law consisting in the inclusion of every citizen in the digital world. Increased efforts are demanded to grant broadband coverage over the entire territory and to assist financially fragile people to profit from internet connectivity as the latter has recently been recognized essential to the minimum welfare by the French constitutional court in the same terms as the access to water and electricity. Further, the bill aims to facilitate the access to new technologies for people suffering from disabilities, by requiring administrations and larger companies to offer hearing-impaired “visual” translation of their telephone services and guaranteeing better accessibility to public utilities’ websites. Last but not least, an article proposes to any net user to write a digital will and appoint a trusted person to manage his personal data after death.

What beneficial effects are to be expected from the public consultation on the outcome of the law? 

The “projet de loi pour une République numérique” has undeniably as a goal to involve citizens in the decisional process of the public institutions by giving them, through the new possibilities granted over the Internet, the opportunity to contribute and to influence personally the political decision. It enables citizens thus to become actors not only over social media or blogs or any other surface of discussion online but to transpose their new position as protagonists of our digital world into the decisional process.

If this is entirely positive as such, it is, however, important to dampen every excess of enthusiasm on the question. In the first place, the government is not going to shift its position on controversial subjects. To illustrate, a proposition that has been introduced to grant whistleblowers a legal protection in France is not going to make the government reconsider the issue.

In the second place, the public consultation that lasts until the 18th of October is not even at the beginning of the legislative process. Knowing the substantial changes that can be performed via amendments in both legislative chambers, it is all but certain any citizen’s proposition is likely to find itself in the final draft.

In the third place, proposing changes or adding ideas to a plain text of a draft of a bill is not an easy task as the law often does not specify how it is going to be applied in a precise context without the necessary decrees explicating the conditions of application of the law.

However, these critics have to be put into context with the positive features this public consultation can bring about. Indeed, giving citizens the possibility to participate in the writing of a bill encourages them to stay informed and to question themselves on the accuracy of different legal dispositions. Furthermore, civic awareness is not only a way to enhance our way to live and conceive democracy, but is also beneficial to the democratic legitimacy of every public actor, which can improve the correlation between representatives and represented by giving the second the possibility to control more closely the actions of the first and to fulfil their basic duty as citizens.

A question that needs however to be raised is why a public consultation was able to be organised for the “projet de loi pour une République numérique” and not for the recent intelligence bill “loi relative au renseignement”. Concerning every individual’s public liberties, the intelligence bill has impacted more than any other law citizens’ rights in the twenty-first century. Nevertheless, even though the public opinion had many objections to formulate, the government preferred to ignore them widely.

What is important to grasp is that the government is not likely to allow citizens, via a public consultation, to change in any way its position on highly political subjects. This does however not mean that the public opinion will not be able to influence this law. On the contrary, on platforms like these, small changes to amendments or even interesting consensual articles could be integrated within the main text of the law, but it is important to put them into context with the rest of the bill and more generally the particular decision-making process of this law. In other words, if this consultation, as a particular form of participative democracy, can have very beneficial effects on a local level, where the citizen is often the best judge to arbitrate on a decision which he appreciates on a daily basis, its efficiency is however doubtful when it comes to form legislative amendments or to propose legal provisions. Indeed, the legal process intervenes in a particular context, where the better solution is rather to have parliamentarians representing genuinely the general interest than to rely on citizens’ cooperation.

In the end, there is no real need to be particularly critical towards a plebiscite that aims to increase citizens’ participation in the public debate. But neither should anyone get excessively enthusiastic about it, except maybe the government itself, which is potentially landing a successful PR operation. However it may be, the significance of the consultation seems rather limited compared to what is at stake with this law and its possible consequences for the digital Republic of the twenty-first century.