[A2k] Victory on HADOPI

[Anne-Catherine Lorrain]

--
[ Picked text/plain from multipart/alternative ]
*The French graduated response proposal censored by the Constitutional
judge.*

*What does the French Constitutional Court say in its
decision<http://www.conseil-constitutionnel.fr/conseil-constitutionnel/fran=
cais/les-decisions/2009/decisions-par-date/2009/2009-580-dc/decision-n-2009=
-580-dc-du-10-juin-2009.42666.html>of
June 10th, 2009?

*Reminder:
The law =93on Creation and the Internet=94 creates an Ad Hoc administrative
Authority (=93Haute Autorit=E9 pour la diffusion des Oeuvres et la Protecti=
on
des Droits sur Internet=94: HADOPI) that would have to implement a procedur=
e
of =93prevention of copyright infringement=94, based on a new obligation: t=
he
obligation for web users to secure their Internet connection.

If, after obtaining electronic connection data (collected by administrative
agents mandated by right holders=92 collecting societies), a web user is
suspected of copyright infringement, the HADOPI would be in charge of
implementing a specific administrative procedure: send warning messages to
web users, and eventually pronounce administrative sanctions (among which
the disconnection to the Internet), if the infringement repeats after the
warning messages are sent.

The Court declared several core provisions of the graduated response
proposal as contrary to the French Constitution.

Here are the main points made by the French Constitutional Judge:

   - *The HADOPI cannot have any repressive power. The Authority=92s role w=
ill
   thus be limited to sending warning messages to web users suspected of
   copyright infringement.*

*The freedom of expression and of communication is a fundamental
right*(article 11 of the French Constitution). Any restriction to this
right must
be proportionate. Due to the evolution of the telecommunication means, *acc=
ess
to Internet services is part of the exercise of this fundamental right*. Th=
e
law would give the Authority the power to pronounce sanctions resulting in
Internet access restrictions, not only to the holder of the connection
(party of the contract with the ISP), but to the other persons benefiting
from the same Internet connection. The consequences of such sanctions would
not only target a specific category of persons, but would potentially
deprive the whole population of their Internet connection. This would have
disproportionate consequences on the right to freedom of expression and of
communication, notably when this right is exercised in the private sphere
(at home). Even if the law provides safeguards and limitations to such
measures of Internet disconnection, to give an administrative authority the
power to pronounce such measures is anticonstitutional by itself.

   - *The law does not respect the right of presumption of innocence.*

*The law operates a reversal of the boundary of proof*, requiring the
suspected infringer to prove that he/she has respected the obligation to
secure his/her Internet connection (i.e. by proving that he/she has
installed a security software (this software must be part of a list to be
determined by Decree); proving that the infringement has been caused by a
third person; force majeure).

The law disregards the Constitution, as it does not respect the fundamental
right of the presumption of innocence. On the contrary, *the law establishe=
s
a principle of presumption of culpability, which is anticonstitutional*.

   - *The law complies with the right to privacy, provided that safeguard
   provisions and the existing legislation on the protection of private dat=
a
   are respected.*

The treatment of personal data is authorized by the law. The HADOPI can be
part of the treatment of personal data process, prior to a judicial
procedure, and under the control of the national data protection authority
(=93Commission Nationale Informatique et Libert=E9s=94: CNIL). The *HADOPI =
can
only be vested with a prior role to the judicial procedure*. It will be up
to the judge to decide whether the concerned web user infringed the
obligation to secure his/her Internet connection.

   - *The HADOPI can determine a =93white list=94 of online legal offers of
   copyrighted content.*

The =93labelling=94 of legal offers can be established by the HADOPI. The f=
act
that the law refers the conditions to grant and to implement this
=93labelling=94 procedure to a Decree is not anticonstitutional.

*What=92s next?*

The law will be published with the amendments requested by the
Constitutional judge. The HADOPI will become an administrative body in
charge of (only) sending warning messages to web-users, with the intention =
=96
as stated by the Constitutional Court =96 of =93limiting the number of onli=
ne
copyright infringements (=85), in the interest of a good administration of
justice=94.

All the provisions related to the administrative sanctions will be removed
from the law (the disconnection to the Internet; the obligation for
sanctioned web users not to connect to the Internet through another
operator; the establishment of a web users=92 =93black list=94; the obligat=
ion for
ISPs to implement sanctions=85).

This decision echoes =93Amendment 138=94 (now AMD 46) of the Telecoms Packa=
ge
voted by the European Parliament (
http://www.tacd-ip.org/blog/2009/05/07/no-agreement-on-the-eu-telecoms-pack=
age-european-parliament-votes-for-the-right-to-access-to-the-internet-and-a=
gainst-the-graduated-response/).


... and the music industry of course has
comments:http://www.billboard.biz/bbbiz/content_display/industry/e3idff59d6=
6183db8688b0a28f73aa35d4d
Some complementary articles in English:
http://arstechnica.com/tech-policy/news/2009/06/french-court-savages-3-stri=
kes-law-tosses-it-out.ars
http://www.laquadrature.net/en/hadopi-is-dead-three-strikes-killed-by-highe=
st-court

Best regards,

Anne-Catherine

--
Anne-Catherine Lorrain
aclorrain@gmail.com
Mob.: +32 473 99 97 92
www.aclorrain.fr
www.tacd-ip.org/blog