PRESS RELEASE
Decision No. 2022-1016 QPC of 21 October 2022
(Dereferencing an online interface)
The Constitutional Council rules that legislative provisions allowing the administration to order the dereferencing from interfaces of certain electronic addresses whose content is clearly unlawful conform with the Constitution
Purpose of the application for a priority preliminary ruling on the issue of constitutionality (question prioritaire de constitutionnalité, QPC)
On 26 July 2022, the Conseil d’État referred to the Constitutional Council an application for a priority preliminary ruling on the issue of constitutionality relating to the conformity of 2° (a) of Article L. 521-3-1 of the Consumer Code, in its formulation resulting from Act No. 2020-1508 of 3 December 2020 containing various provisions for adapting to European Union law on economic and financial matters, with rights and freedoms that the Constitution guarantees.
Under these provisions, the administrative authority in charge of competition and consumption can take measures to stop certain fraudulent commercial practices committed through an online interface. In particular, it may, in certain cases, order online platform operators to dereference the electronic addresses of online interfaces with unlawful content.
Criticism made concerning these provisions
The applicant company and the intervening company criticised these provisions for allowing the administration to order the dereferencing of an online interface, without making such a measure subject to the authorisation of a judge or stipulating that it must be limited in time and relate only to content that is clearly unlawful. In view of the consequences that this measure would have for the operator of the interface and its users, they argued that it was an infringement of the freedom of expression and communication as well as the right of free enterprise.
Review of the provisions subject to the QPC
* In order to rule on the examination of the objection based on the infringement of the freedom of expression and communication, the Constitutional Council notes, in today’s decision that, under the terms of Article 11 of the Declaration of Human and Civic Rights of 1789: “The free communication of ideas and of opinions is one of the most precious rights of man. Any citizen may therefore speak, write and publish freely, except what is tantamount to the abuse of this liberty in the cases determined by Law.” In the current state of the media and in view of the widespread development of online public communication services and the importance of such services for participation in democratic life and the expression of ideas and opinions, this right implies the freedom to access and express oneself in such services.
Article 34 of the Constitution provides that: “Statutes shall determine the rules concerning: civic rights and the fundamental guarantees granted to citizens for the exercise of their civil liberties.” On this basis, the legislator has the liberty to lay down rules concerning the exercise of the right of free communication and the freedom to speak, write and print. The legislator may also, in this respect, institute provisions designed to put an end to abuses of the exercise of freedom of expression and communication that are prejudicial to public order and the rights of third parties. However, freedom of expression and communication is even more important in that its exercise is part of democracy and one of the guarantees of the respect of other rights and freedoms. It follows that the infringements on the exercise of this freedom must be necessary, appropriate, and proportional to the pursued objective.
In this respect, the Constitutional Council considers that the disputed provisions allow the administrative authority to limit users’ access to websites or applications by imposing the disappearance of their electronic addresses in the classification or referencing implemented by the operators of online platforms. In so doing, these provisions infringe on the freedom of expression and communication.
The Constitutional Council considers that, firstly, by adopting the disputed provisions, the legislator intended to strengthen consumer protection and ensure the fairness of online commercial transactions. In doing so, the legislator pursued an objective in the general interest.
Secondly, on the one hand, the dereferencing measure only applies to websites or applications operated for commercial purposes by or on behalf of a professional and enabling consumers to access the goods or services they offer, when practices have been observed from these interfaces which characterise certain offences punishable by a penalty of at least two years’ imprisonment and which are likely to seriously undermine fair trade or consumer interests. On the other hand, only the electronic addresses of online interfaces whose content is clearly unlawful may be dereferenced.
Thirdly, the disputed provisions can only be implemented if the perpetrator of the fraudulent practice observed on this interface has not been identified or if they have not complied with a compliance order issued after an adversarial procedure and which can be challenged before the competent court.
Fourthly, the time limit set by the administrative authority for dereferencing may not be less than 48 hours. This time limit allows interested parties to usefully challenge this decision by way of an application for a summary procedure on the basis of Articles L. 521-1 and L. 521-2 of the Code of Administrative Justice.
Finally, the disputed provisions allow, under judicial review which ensures its proportionality, that the dereferencing measure applies to all or part of the online interface.
For all these reasons, the Constitutional Council ruled that the objection alleging infringement of the freedom of expression and communication must be dismissed.
* Then, by ruling on the objection due to the infringement of the right to free enterprise, the Constitutional Council notes that the legislator has the liberty, as provided for in Article 4 of the Declaration of Human and Civic Rights of 1789, to impose limitations related to constitutional requirements, or requirements that are justified by the public interest, on condition that they do not result in disproportionate infringements on the pursued objective.
For the same reasons as those given above, and noting in addition that the disputed provisions do not have the effect of preventing the operators of these interfaces from carrying out their commercial activities, since their addresses remain directly accessible online, the Constitutional Council ruled that this objection must also be dismissed.