Free.fr : Do ISPs have the right to filter spam? The opinion of Maître Haas.

You have probably heard about it, Free has been condemned a few days ago by the Commercial Court of Paris concerning the blocking of emails sent by the company Buzzee by the anti-spam services of Free.

From Badsender's point of view, this is a decision that can be very damaging for the whole "reasonable" emailing industry. If today consumers continue to react to email campaigns sent by brands, it is largely because ISPs and webmails have succeeded in recent years to improve the separation and filtering between spam-like messages and all legitimate commercial communication.

To see more clearly, and as we are not lawyers, we asked Maître Gérard Haasa lawyer specialized in digital issues, to give us his point of view on the issue.

The judge therefore forbids Free to filter messages sent by the emailing specialistThe Court found that the telecom operator was not responsible for ensuring compliance with the provisions of Article L. 34-5 of the French Post and Electronic Communications Code. It should be noted that this article prohibits commercial prospecting messages to be sent to individuals without their prior consent to receive them, especially since it does not demonstrate that these messages are spam or that they have been filtered following complaints from some of its customers. - Mr. Gérard Haas

It is on the legitimacy that Free.fr can have concerning the filtering of the spam that the court pronounced itself. However, it is not a question of generalizing this decision to all ISPs.

It should be noted that this is a summary order, issued by a court of first instance ruling on an obvious case. Its scope is therefore limited and does not automatically mean that this ban on spam filtering will be applied uniformly to all Internet service providers. The impact of this decision must therefore be tempered at this stage of the proceedings. It is nevertheless an interesting indicator to take into account. - Gérard Haas

Neutrality at the heart of this decision

With respect to filtering, it should be noted that Internet service providers such as Free are subject to a obligation of neutrality. Article D. 98-5 of the French Post and Electronic Communications Code requires the operator to take "the necessary measures to guarantee the neutrality of its services with regard to the content of the messages transmitted on its network and the secrecy of correspondence. To this end, the operator provides its services without discrimination regardless of the nature of the messages transmitted [...]".

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This principle of neutrality is also at the heart of current reforms. For example, the bill for a "Digital Republic", sponsored by Axelle Lemaire and adopted on first reading in the National Assembly on January 26, amends Article L. 33-1 of the French Post and Electronic Communications Code by adding a paragraph on net neutrality. - Mr. Gérard Haas

The secrecy of correspondence would also apply to anti-spam filters

This is a subject that we have already had the opportunity to discuss on several occasions and which largely explains the differences in filtering between the big American webmails and what the French operators are allowed to do. In France, there is no question of analyzing the interactions that the recipient could have with his email (opening, clicking, deleting, ...), only, a priori, the spam complaints are used.

On the other hand, before delivery to the box, French operators obviously analyze incoming emails, mainly with Vade Retro (read the interview we did with the French company), but also with other solutions on the market such as Cloudmark. This analysis could also be a problem.

First of all, the fact that an operator has to filter the emails sent to its customers implies that it is obliged to open the emails in question to determine whether the recipient customer has given his or her consent pursuant to Article L. 34-5 of the French Post and Communications Code. However, upon learning of the content of these messages, he would violate the secrecy of correspondence provided for in Article L. 32-3 of the same Code, as the Commercial Court did not fail to point out in its order. - Mr. Gérard Haas

The solution will be found quickly: change the conditions of use of ISP email services

Finally, it should be noted that in its order of January 20, 2016, the Commercial Court did not prohibit message filtering by operators if the recipients of these messages have given their permission The operators explicitly mandated for this purpose thus regain a role in the protection of their customers against the threat of spam. Of course, the possibility of granting this mandate will have to be foreseen by the operators wishing to engage in blocking, for example within the framework of standard contracts or in their general sales conditions, and will have to be framed by precise criteria. - Mr. Gérard Haas

If the current level of filtering is to be maintained, it will probably be necessary for operators to strengthen their terms and conditions of sale so that every user of their email platforms agrees to the filtering and spam blocking techniques. For the general public, this is obvious, and there should be no problem to collect this consent. Indeed, today, the choice of a webmail is mainly defined by the qualities and performances of spam filtering. On their side, ISPs have every interest in keeping a maximum of users of their webmails. These are often an essential gateway to their portals and therefore their advertising revenues.