The Constitutional Council of France – a uniquely French legal body which is neither a court nor composed of judges – struck down the French Three Strikes Law against digital piracy as contrary to “French constitutional principles”. As Peter Sayer of IDG News Service notes:
“France’s highest legal authority has ruled as unconstitutional a government plan to cut off, without trial, Internet users accused of copyright infringement.
The so-called “three strikes” law would have handed over the power to disconnect surfers to a newly created High Authority for the Distribution of Works and the Protection of Rights on the Internet (Hadopi). It was approved by the French Parliament in April but has not yet been signed into law.“
The idea of “individual liberty” is one of the core principles of world democracy and is integrally tied to the French Revolution more than 200 years ago, so that we were surprised to see France pass a law by which Internet access could be denied to file-sharers by an administrative body.
As we wrote about the French “Three Strikes Law” at LawPundit in France Defies European Union and Passes Controversial Anti-Piracy Three Strikes and You’re Out Creation and Internet Law Against Illegal File-Sharing :
“We presume that a compromise political and legal solution will be the recognition of Internet access as a fundamental right of EU citizens, provided that they do not engage in illegal activities via that very same Internet. We see no direct confrontation to be necessary here.“
Eric Pfanner at the New York Times writes about the decision of the Constitutional Council:
“The council said the proposal was contrary to French constitutional principles, like the presumption of innocence and freedom of speech. The latter right “implies today, considering the development of the Internet, and its importance for the participation in democratic life and the expression of ideas and opinions, the online public’s freedom to access these communication services,” the council said.“
As written at CNet Digital Media News by Steven Musil:
“The council said “free access to public communication services on line” was a human right that only a judge should have the power to disconnect.“
Nate Anderson at ars technica goes into the legal details in his French court savages “three-strikes” law, tosses it out, pointing out that a critical flaw in the Three Strikes Law was the fact that the USER had to prove that he had not illegally engaged in file-sharing in order to retain his or her threatened cut-off from Internet access:
“[B]ut the burden of proof was on the Internet user….
In its ruling [.pdf here (in French)], this was precisely the issue that the Council zeroed in upon, going all the way back to the French Revolution to stress the wrongheadedness of the HADOPI approach.
Moreover, whereas under section nine of the Declaration of 1789, every man is presumed innocent until has has been proven guilty, it follows that in principle the legislature does not establish a presumption of guilt in criminal matters,” wrote the Council. This basic principle applies “to any sanction in the nature of punishment, even if the legislature has left the decision to an authority that is nonjudicial in nature.”
The court also made a strong statement about freedom of speech: “Freedom of expression and communication is so valuable that its exercise is a prerequisite for democracy and one of the guarantees of respect for other rights and freedoms and attacks on the exercise of this freedom must be necessary, appropriate and proportionate to the aim pursued.“
Andrew Orlowski at The Register concluded:
“Hadopi (the acronym of the French government agency after whom the three strikes law was named) created a penalty of suspending an individual’s internet connection for two to twelve months if they repeatedly downloaded unlicensed copyright material from the internet.
The [Constitutional Council] found several parts of Hadopi unconstitutional, violating the citizen’s right to free speech, and the presumption of innocence….
“Freedom of expression and communication is all the more valuable that its exercise is a prerequisite for democracy and one of the guarantees of respect for other rights and freedoms and that attacks on the exercise of this freedom must be necessary, appropriate and proportionate to the aim pursued,” they wrote.
The breadth of the finding effectively guts the law – so it’s back to square one for copyright enforcement in France.
Or is it?
IFPI counsel Shirla Perlmutter told the World Copyright Summit that the French Government would resubmit the law to Parliament, taking account of the [Council’s] objections.
“Our understanding is that a new version of the bill will maintain the same graduated response, but transfer powers executed by Hadopi to a special court….“
That essentially takes the teeth out of the Three Strikes Law and is a political setback for the French President. As written by Jose Vilches at Techspot:
“The decision is a setback for President Nicholas Sarkozy, who argued that the law was crucial to protecting artistic creation in the digital era, and a huge victory to everyone opposing it. With the uproar this so-called “three strikes” law has caused in France, and an earlier measure passed by the European Parliament prohibiting EU governments from cutting off a user’s Internet connection without a court order, it seems unlikely that other European countries will propose similar laws.“