Convention on online advertising: increased circumvention of the law in the name of fighting piracy

Paris, 26 March 2015 — The Minister of Culture announced yesterday a plan of action for the fight against piracy and an agreement (fr) on online advertising negotiated between advertisers, advertising agencies and rightsholders under the supervision of the government. This agreement confirms the fears La Quadrature du Net has expressed over the last several months about the growing threat of repressive online policy (fr). It organises a system in which identifying "massively infringing sites" is relegated to advertising companies while circumventing the law, which alone should be authorised to decide about this in order to adequately guarantee freedom of expression and the right to information. This new development marks a step towards the creation of a private police force in the name of intellectual property rights.

The convention made public yesterday is based on the fuzzy notion of "sites massively infringing on intellectual property rights", which is strongly reminiscent of "infringing on a commercial scale" that figured in the ACTA agreement. But where ACTA left to judges the task of identifying sites that meet that criterion, the text presented by the Minister of Culture abandons that task to the advertisers, who will act under pressure from the rightsholders.

The convention indeed specifies that the signatory agencies and advertisers may "establish a list of URLs by referring to informations given by the competent authorities, possibly using technological means, and in collaboration with the rightsholders who alone know the applicable rights". To draw up such blacklists, these participants may rely on judicial decisions, but also on simple reports from the Interior Minister's Pharos platform, as well as on information passed on by institutions like Hadopi or professional associations representing cultural industries.

The convention's signatories undertake not to place advertising on sites identified this way, relying on the contractual conditions for deploying their services. This approach, called "Follow The Money", results in practice in getting rid of the judge in lieu of an opaque system in which agreements among private participants can end up blacklisting sites. A simple "oversight committee" is expected to frame this plan, composed of professional representatives of advertisers and rightsholders, which will offer no serious guarantee of transparency and respect for civil rights.

So far as the convention is concerned, every advertising agency will effectually be free to establish its own blacklist with no obligation to make it public, and the work of the oversight committee will appear in an annual report which the Minister of Culture may choose to publish or not.

La Quadrature du Net has never defended centralised streaming or direct download sites whose advertising revenue is illegitimate revenue. But the means in this convention mark an intolerable abandon of fundamental guaranties, and it is clear that the real aim of this plan is to organize the first step in transferring judicial prerogatives directly to the cultural industries.

This drift to an extra-legal application of intellectual property rights is the more disquieting because it is being promoted by the French government at the European level, and because it can be found, for instance, in the Svoboda report being examined currently by the European Parliament.

"The war against sharing has stuck itself in a dead-end from which it can't get out without further damaging the basic rules of the state of law. Citizens should not accept that, as this convention about advertising provides, sites might be blacklisted without legal intervention" declared Lionel Maurel, member of La Quadrature du Net's Strategic Orientation Committee.