Telecommunications Regulatory

Full reference: CJEU, Grand Chamber, 6th of October 2020, Privacy International c/ Secretary of State for Foreign and Commonwealth Affairs, C-623/17. Read the judgment  Read the summary of the judgment (in French) Read the opinion of the Advocate General  Read the reference for a preliminary ruling from the Investigatory Powers Tribunal – London (United Kingdom)

Full reference: Frison-Roche, M.-A., Being obliged by Law to unlock telephone is not equivalent to self-incrimination: Cour de cassation, Criminal Chamber, Dec. 19, 2019, Newsletter MAFR – Law, Compliance, Regulation, 21st of August 2020 Read by freely subscribing the other news of the Newsletter MAFR – Law, Compliance, Regulation   Summary of the news The Cour de Cassation (French Supreme Judicial Court) made a decision on 19th of December 2019 about a case concerning a refusal to communicate his mobile phone's unlock code to the police while the police found him with a significant quantity of narcotic and a lot of cash and that there was a certain probability that this mobile phone get proofs of culpability of its owner. The individual was indicted not for narcotic trafficking but for not having communicate its unlock code which constitute an offense to article 434-15-2 of code pénal, from the loi du 3 juin 2018 renforçant la lutte contre la criminalité organisée, et le terrorisme et leur financement (law reinforcing organized crime, terrorisme and their financing). The accused invokes before the court its right to not incriminate oneself. Indeed, the configuration face to policemen was such that if he refused to communicate its unlock code, he will be punished because of this obligation to communicate his code and that if he accepted, he will also be sanctioned because of the proofs contained into the mobile phone. Such a configuration therefore offered him no alternative to confessing, which is contrary to the European Convention on Human Rights and to European and national jurisprudence. Face to such a case, the Cour de Cassation chose to segment the information and proposed the following solution: if the researched information cannot be obtained regardless of the suspect willingness, it is not possible to constraint this person to communicate this information without violating its procedural rights, but if the information can be obtained regardless of the suspect willingness then the individual is obliged to communicate his code. In the current case, as it was possible for policemen to obtain information contained in the phone by technical means, longer but existent, then the refuse of communication of the unlock code by the suspect constitute an obstruction that should be sanctioned.  Such a decision is an exemple of the conciliation by the judge of two fundamental but contradictory "monumental goals" of Compliance Law: transparency of information towards public authorities and very sensible personal data protection.  ​To go further, read Marie-Anne Frison-Roche's working paper: Rethinking the world from the notion of data    

Référence complète : Frison-Roche, M.-A., Le maniement de la propriété intellectuelle comme outil de régulation et de compliance, in Vivant, M. (dir.), Les Grands Arrêts de la propriété intellectuelle, 3ième éd., 2019, 9-11, pp. 43-53. This contribution is written in French. Summary:  Intellectual Property, which comes from the State and is incorporated into public policy, can be designed not to reward the creator a posteriori, but to encourage others to innovate. It is then an Ex Ante regulatory tool, an alternative to the subsidy. If private copying is an exception, it is not in relation to the principle of Competition but in an insertion into a system of incentives, starting from the costs borne by the creator of the first innovation: the rights holder is then protected , not only according to a balance of interests involved but in order not to discourage innovative potentials and the sector itself. (1st decision) ; The sectoral policy then permeates Intellectual Property, used to regulate a sector, for example that of the drug. While it is true that a laboratory wishing to market a generic drug did not wait for the expiration of the patent for the original drug to do so, it is however not relevant to sanction this anticipation by a few days because the investments made by the holder of the Intellectual Property right have been made profitable by this one and because the public authorities favor the generics in a concern of public health (2nd decision). Systemic interest prevails and therefore Internet service providers have to bear the costs of blocking access while they are irresponsible because of the texts. This obligation to pay is internalized by Compliance Law because they are in the digital system best able to put an end to the violation of Intellectual Property rights which the ecosystem requires to be effective. (3rd decision).   Read the contribution (in French).   Read the Working Paper written in English having served as a basis for this contribution and endowed with additional developments, technical references and hypertext links.  -

The regulatory authority of the North American telecommunications (Federal Communications Commission – FCC) adopted a position 5 August 2014 to admit that the service providers charge users for the service of priority access to content. For some commentators, allowing this monetization, the FCC has "killed" the "net neutrality". Immediately, President Barack Obama is strongly opposed to this position on behalf of the principle known as "net neutrality." The Washington Post, in its presentation of this reaction of the President, described it as "populist". Basically, it comes to choosing whether you prefer to favor companies that produce content and containing or to favor search engines. It is true that the search engines, whose business model relies heavily on the legal principle of "net neutrality" are American firms, like Google. On the other hand, many companies that carry the content and can therefore monetize the service of access to a priority basis are divided to more evenly around the world, including being located in Europe.

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