This past June France enacted an Internet anti-piracy law commonly known as the "HADOPI" or "three strikes" law, because after a certain number of warnings an online infringer’s Internet access would be cut off. On June 10th, the French Constitutional Court found a portion of the law unconstitutional. Specifically, the court held that because terminating an individual’s Internet access affects that individual’s right to free expression, a fundamental right, a decision to terminate access must be made by a court after a careful balancing of interests. Because the HADOPI law gave Internet access termination power to an agency, the court held that grant of authority unconsitutional. Further background on this decision can be found in our update on the HADOPI law and the French Consitutional Court’s decision .
On September 22, 2009, the French parliament passed a bill intended to remedy the enforcement gap left by the court’s decision. This bill, known as HADOPI 2, empowers French courts, instead of the HADOPI administrative agency, with the authority to cut off the Internet access of copyright infringers or of individuals who are manifestly negligent in their duty to protect their broadband access line against illegal downloading.
The cornerstone of the new law is an affirmative duty imposed on French broadband subscribers to take measures to ensure that their broadband access is not used for infringing file sharing. If the subscriber ignores this duty and the broadband access is used for illegal downloading, the subscriber of the line may have his or her Internet access cut off for a limited time. If the subscriber installs certain approved protection technologies (and no one is yet sure what those technologies will be), the subscriber will be deemed to have fulfilled his or her duty of care.
The new law, like the first HADOPI law, will be scrutinized by the Constitutional Court, so the game’s not over yet.
Later this fall, the French government will publish several decrees intended to define how the new administrative authority authorized by HADOPI will operate, as well as how the privacy aspects of this law (for example, the handling of IP addresses) will be dealt with. The French CNIL will need to authorize copyright societies to collect IP addresses and send them to the new administrative authority.
Further background reading on this topic can be found in the English translation of the French Constitutional Court’s June 10, 2009 decision, which contains fascinating language on the appropriate balance between copyright, privacy and freedom of expression. It is similar to the European Court of Justice’s decision in the Promusicae case: none of the rights is absolute, a balancing between copyright and privacy is permitted, but it has to be done with care. For those of you wondering whether the right to privacy is part of the French constitution, it is, as set forth in paragraph 22 of the French Constitional Court’s decision.
French speakers can read here the text of HADOPI 2 law, or watch the video of French Minister of Culture, Frédéric Mittérand’s opening statement before the National Assembly.