Second HADOPI Law Faces French Constitutionality Test

Just days after the French Parliament adopted a bill aiming to protect literary and artistic intellectual property rights online on 25 September; the law is being challenged on constitutionality grounds.

In what seems yet to be another episode in the French government push for IP enforcement on line, the law nicknamed HADOPI 2 is following in the steps of a first so-called HADOPI law, passed in May and reformed by the French Constitutional Council the following month.

The first law intended to set up a high-level authority for the diffusion of works and the protection of rights on the internet (HADOPI) in charge of locating alleged infringers, warning them, and then applying sanctions, including the suspension of internet connectivity up to one year, after two warnings of illegal downloading.

The Constitutional Council censored two paragraphs of the law, finding them out of line with the French Constitution and leaving the HADOPI with only the surveillance of alleged infringers and warning steps. The HADOPI law was promulgated on 13 June.

Immediately after, the French government submitted a new law restoring penalties, but this time to be decided by a judge rather than by the newly created HADOPI, conforming to the Constitutional Council ruling.

HADOPI 2 was adopted by the French Parliament on 15 September after undergoing a flood of amendments submitted by opponents in the National Assembly, which delayed the discussions. Socialist deputies seized upon the Constitutional Council on 28 September for a review of the law. One of their claims was that the suspension of internet connectivity would call into question the freedom of speech and communication. The Constitutional Council has until 28 October to give its ruling.

According to the French Ministry of Culture and Communication, the high-level authority will be operational as soon as 2010 under the terms of the first law. Members of this high-level authority should be designated in October, by decree. As soon as January 2010, the first warnings should be sent to alleged infringers.

Frédéric Mitterand, the French minister of culture and communication, said the law was not sufficient and that a second step concerning the expansion of new types of cultural products on internet and new sources of income for creators should be pursued, according to a ministry press release.

The full text stating the reasons for the constitutional challenge was published in the French newspaper Les Echos available here (in French).