French Revolution Meets Information Revolution In Setback For HADOPI Law

The French Constitutional Council on Wednesday decided that two articles of a newly passed law creating a graduated punishment mechanism for alleged copyright infringement on the internet did not comply with the French Constitution. The government has options to proceed with changes reflecting the setback to the so-called HADOPI law.

The law, passed on 13 May (IPW, Copyright Policy, 13 May 2009), created a high-level authority for the diffusion of works and the protection of rights on the internet (HADOPI). Included in the sanctions available to the high-level authority was the suspension of internet connectivity from two months to one year, after two warnings of illegal downloading. This “graduated response” mechanism was referred to as a “three strikes” policy.

It was appealed by over 60 French deputies to the Constitutional Council and stirred reaction at the international level, especially at the European Parliament and the Council of Europe. (IPW, Copyright Policy, 8 June 2009)

On 10 June, the Council decided that several points in articles 5 and 11 of this law did not comply with the French Constitution. They based their decision on article 11 of the Declaration of the Rights of Man and of the Citizen (in French), dating back to 1789, which guarantees the freedom of communication and expression.

Article 9 of the declaration insists on the presumption of innocence, reversed by the HADOPI law.

According to the Council’s ruling (in French), the suspension of the internet connection can only be decided by a judge, not by an administrative commission.

Therefore, the Constitutional Council has censored all dispositions relating to the sanctioning ability of the HADOPI Commission. This decision might have international implications.

According to sources at the Constitutional Council and the National Assembly, the government now has two choices to pass the law; the first one would be that the French President asks for a new deliberation of the text in front of the French Parliament to find an acceptable solution so that the two censored paragraphs are constitutionally coherent with the risk that the Constitutional Council might be consulted again over the constitutionality of this modified law. The second one would be that the French government asks the president to approve the law with the mention of the unconstitutionality of the censored paragraphs. The law should be published within 15 days of the Constitutional Council’s decision. At this time no official declaration has been made by the French Government about the issue.

Christine Albanel, the French culture minister, said in a 10 June statement that she regretted that the graduated response cannot be implemented by the HADOPI commission but said she would ask the French president and prime minister to amend the law to comply with the Constitutional Council’s conclusion so that a judge can handle the final stage of the graduated response

She added she was pleased that a “pedagogical anti-piracy mechanism” had been validated by the Constitutional Council, in favour of a “civilised internet.” She was referring to a set of measures including incentives to develop and encourage the legal downloading of cultural content and the quicker release of movies in DVD format and on-demand videos.

The first warnings to alleged infringers should be sent as soon as the autumn, she said.