“Three strikes and you’re out” law overturned by the French Constitutional Council

The French Constitutional Council ruled on 10 June 2009 that the Création and Internet Law (known more colloquially known as the  “loi Hadopi” or the “three strikes and you’re out” law) was unconstitutional.  Interestingly, the Council characterised free access to the internet as a human right, that could not be taken away by an administrative authority. 

The aim of the legislation, which was passed last month, was to fight online file sharing and piracy by suspending the internet access of repeat offenders for up to a year.  The legislation provided for a graduated response to internet users who had breached copyright by online file sharing.  The process was as follows:

  1. The IP right holders would investigate and identify users who were allegedly violating copyright laws, and submit their complaints to an administrative High Authority. 
  2. The Authority would pass warnings to internet service providers (ISPs), who would in turn forward these to the alleged infringers. 
  3. Persistent infringers would first be warned of their infringement by email, and then by letter.  If their infringement continued, their internet connection would be cut off for up to a year, and their name would be placed on a national “black book” of users who must not be granted internet access.

The Council ruled that the law was unconstitutional as:

  • free access to the internet was a human right which could only be limited or taken away by a court, and not by a non-judicial authority;
  • the law violated the presumption of innocence, since the burden of proof was on the alleged infringer to show that they had not infringed copyright law; and
  • the scrutiny or policing of internet traffic envisaged under the law would violate the basic right of privacy.  

The French Government plans to resubmit the bill to parliament, with amendments taking into account the ruling of the Constitutional Council.  It has been suggested that one of the changes would be to give the power to suspend an infringer’s internet access to a special judicial court, as opposed to an administrative authority.

The UK is also considering similar measures, although one proposal under consideration has opted for reducing the speed of the internet connection, rather than disconnecting users.

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