The revised French 3-strikes law, known as Hadopi-2, has been referred to the country's highest court on the grounds that it continues to attack fundamental rights to free speech and due process .
France's revised law to implement graduated response/3-strikes measures is to follow its predecessor to the Constitutional Council. The French opposition Socialist group has made the referral on the primary grounds that the revisions to the law continue tothreaten freedom of expression, and directly flouts the previous ruling by the Constitutional Council on June 10.
The referral to the Consitutional Council charges that the new law - informally known as Hadopi-2 - is a form of Sarkozy's new clothes. It is a way of dressing up the graduated response proposals to get around the June 10 decision.
The basic framework remains the same, with the rights-holders gathering evidence of copyright infringement, which is passed to the Hadopi, which will then apply to the ISPs for the contact details of the user account relating to the infringing IP address. All of this information will be put before a judge, and in this respect the Sarkozy government says that it has complied with the requirements of the Consititutional Council decision of 10 June. The decision stated that the Creation and Internet law was an attack on the right to freedom of expression, because that right can only be taken away by a judge. This is an important safeguard for the liberty of French citizens.
But the referral document charges that the Hadopi-2 law does not change the position from the original law. The judge will not be in full court. There is no provision for an oral hearing, nor for citizens to defend themselves. It more closely resembles an administrative procedure, and simply puts a judge in place to rubber stamp the decision. This may comply with the text of the Constitutional Court's decision, but not with the spirit. It is just dressing up the original law to make it appear compliant.
The referral document argues that this is an attack on one of the core principle of separation of the judiciary - the system which hands out justice to citizens - from the administrative state.
There are other flaws in the Hadopi-2 law highlighted in the referral document. It points out that it will not be possible to apply the sanction of Internet suspension in the same way across the entire country. The French regulator, the ARCEP, has stated that in those areas where there is no local loop unbundling, it will not be possible to maintain IP-based voice services, at the same time as cutting off the Internet. This is thought to affect around 3 million homes.
Another legal flaw concerns the two alternative procedures in the law, which carry different penalties. It seems that the rights-holders who apply for the user to be sanctioned will be able to determine which sanction applies. The second procedure , negligence caracterise, is very problematic, because it concerns the duty of the Internet account holder to make sure that the service is not used to download copyrighted content.
A full acount of the Hadopi-2 saisine is in Liberation
Read the Hadopi-2 Saisine
This article is licensed under a Creative Commons Attribution Non-commercial-Share Alike 2.5 UK:England and Wales License. http://creativecommons.org/licenses/by-nc-sa/2.0/uk/ It may be used for non-commercial purposes only, and the author's name should be attributed. The correct attribution for this article is: Monica Horten (2009) Hadopi-2 goes to Constitutional Councill, http://www.iptegrity.com 4 May 2009.