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“Three strikes” unconstitutional in France

Posted by malcolm on Thursday, June 11th, 2009 at 11:20

France’s Constitutional Council has declared unconstitutional the HADOPI “three strikes” law. The law, recently passed by the French legislature, would have empowered a administrative agency to force ISPs to disconnect Internet users for alleged copyright infringement, at the request of rightsholders.

The Constitution Council’s decision criticises the law on two grounds that go to the heart of three strikes legislation wherever it is proposed: enforcing the sanction of disconnection without a hearing before an independent judge undermines the presumption of innocence and the right to a free trial, and requiring Internet disconnection for copyright infringement is an infringement of the right to freedom of expression that is usually disproportionate.

“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.
“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.”
Judgement of the French Constitutional Council - Hat-tip to Ars Technica for the translation

The HADOPI law is not expected to be completely abandoned by the French government, but the injection of a right to a fair trial before disconnection will significantly impact on its application.

The HADOPI law has a history of controversy. It was originally rejected by the French Senate - a very unusual occurrence - before being approved on the second attempt. AFA, the French trade association for ISPs, has called the Constitutional Council’s decision “the most motivated decision the Council has given in the last ten years!”

The French HADOPI law has become a touchstone issue of Internet regulation for supporters and critics alike; as the most strict anti-piracy legislation in Europe, the outcome has been closely followed around the world. Its influence extends even beyond copyright issues: the “Telecoms Package” of regulatory Directives, (which cover everything from broadband to wireless spectrum to telephone number directory enquiries services)  has been delayed because the European Parliament inserted a clause intending to make the HADOPI law contrary to European law - a move resisted by the French government and its allies in the Council of Ministers.

Having risked the progress of major reform in the telecommunications market over the HADOPI issue, it will be ironic if France sets a precedent that three strikes laws are contrary to human rights.

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