A French law designed to disconnect and ban users from the Internet at the request of rights holders has been deemed unconstitutional by the French Constitutional Council. The law known as the HADOPI law (Higher Authority for the Distribution of Works and the Protection of Copyright on the Internet), backed by President Sarkozy and the entertainment industry, was based on the three-strikes principle. The agency would first send a warning e-mail, then a letter and finally cut off the connection for a year if users were found to be illegally sharing files. A similar rule was considered in the UK for the Digital Britain report but rejected by Lord Carter to be replaced by what is expected to be traffic management instead of being disconnected.
The Constitutional Council rejected the law on two grounds- it undermines the presumption of innocence until proven guilty and the right to a fair trial; and it also is seen as a disproportionate infringement of the right to freedom of expression to disconnect users in this way.
"Moreover, whereas under section nine of the Declaration of 1789, every man is presumed innocent until has has been proven guilty, it follows that in principle the legislature does not establish a presumption of guilt in criminal matters," wrote the Council. This basic principle applies "to any sanction in the nature of punishment, even if the legislature has left the decision to an authority that is nonjudicial in nature.
"Freedom of expression and communication is so valuable that its exercise is a prerequisite for democracy and one of the guarantees of respect for other rights and freedoms and attacks on the exercise of this freedom must be necessary, appropriate and proportionate to the aim pursued."Judgement from the French Constitutional Council
With lots of noise on illegal file sharing recently, the creative industries may have to come up with an alternative approach that is acceptable to both Internet service providers and law makers alike, not to mention finding better ways to give users the content they want. More details and information on the HADOPI law can be found at the LINX public affairs website.