French high court declares antipiracy law unconstitutional

The French Conseil Constitutionnel, the highest court in France (equivalent to the US Supreme Court), has ruled that certain provisions of the recently passed Hadopi Law are unconstitutional. In particular, the court held that the decision to terminate the Internet access of people found illegally downloading content, must be taken by a judge, not by administrative action, as provided in the Hadopi Law.

Last month, after long and passionate debates among French Internet users and a rare and severe setback, the French government finally passed the Hadopi Law on 13 May 2009. The law allowed an administrative commission to cut the Internet connection of anyone who has been found illegally downloading copyrighted content. The administration commission can terminate such Internet access for a period of up to two years. A few days before the Hadopi Law was passed, the European Parliament was already on a collision course with French law.

On 6 May 2009 in Brussels, after lengthy discussions, negotiations and conciliation procedures among the three major entities of the European Community (the Council of Ministers, the Commission and the Parliament), the European Parliament voted the last version of a text known as “new Telecom Pack” which is to become the regulatory framework driving the evolution of the telecommunication markets in Europe for the next five years. This text should become European law after a final approval by the Council of Ministers this week, or may return to a third conciliation in September if not approved as is.

Is Internet access a fundamental right?

One key point of this EU text is amendment 138, which was added, modified after pressure from the French government and a letter from Nicolas Sarkozy to Jose Manuel Barroso (President of the European Commission), and then reinstated at the last minute. It has been fully integrated into the “new Telecom Pack” and the entire text was accepted by the majority of the European deputies.

The amendment says that in order to preserve the fundamental rights and freedom of citizens, any decision depriving them of these rights — e.g. cutting off their Internet access — must be taken only by a judge and not by an administrative agency. The Hadopi law, passed a week later in France, contradicted this final version of the proposed framework adopted earlier by the European lawmakers. Many Internet users in France and in Europe protested against the Hadopi Law, which they considered to be in violation of the 1789 French Constitution that gives citizens freedom of access to information and knowledge. Christine Albanel, French Minister of Culture, who is in charge of enforcing the Hadopi Law, was also quoted saying the Internet access is not a fundamental right.

Highest court challenges Sarkozy digital policy

On 19 May 2009, a group of French Deputies (socialist) filed an appeal with France’s highest court, the Conseil Constitutionnel, challenging the Hadopi Law and won. The Conseil Constitutionnel ruling has delivered a serious setback to the Sarkozy’s digital policy.

In an official release, the highest court says the Hadopi Law violates the 11th amendment of the 1789 French Constitution, which guarantees the freedom of communication and expression. It says that the power of restraining the exercise of this freedom is exclusively reserved to a judge. The court also held that the Hadopi Law violates the 9th amendment of the 1789 Constitution, which says people are presumed innocent until proven guilty.

The role of the Hadopi (the authority in charge of the procedure) has to be refocused. It is now positioned to tell the allegedly illegal downloader he has been suspected to unlawful activity, but in no case is it allowed to sanction him. Reacting to this decision, Minister Albanel has stated that she will soon modify the law and complement it to allow the judge to be the last step of the “gradual retaliation”, but she will have to come back to the French Parliament. “The Hadopi Authority will be put in place this summer as a tool to actively prevent illegal downloads, and the first notifications of illegal activity will be sent to the Internet users this summer,” declared Albanel.

Related stories:

French National Assembly rejects bill on illegal downloads

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