French Constitutional Council hold parts of ‘three-strikes’ law unconstitutional
The French Constitutional Council, which reviews legislation to ensure that principles and rules of the Constitution are upheld, has held that portions of the Création et Internet legislation are unconstitutional. This has a significant practical and symbolic impact on the dialogue regarding such “three-strikes” measures. Nate Anderson at Ars opines that “[t]o call the decision a “bombshell” is to do a grave disservice to bombshells everywhere”
Just yesterday, the Frenchy Culture and Communication Minister, Chrstine Albanel, told a conference in Washington that the ‘three-strikes’ law is ‘realistic,’ and suggested that those who oppose it are “in the wrong century.”
The law was to create an agency called HADPOI, which would oversee and implement a ‘three-strikes’ approach, where people would be disconnected from their internet connection if the administrative body decided that the person had infringed copyright. This kind of law has been opposed by MEPs in the European Parliament, and it has now been declared unconstitutional by France’s own Council. In so doing, it stressed the need for a presumption of innocence and for the importance of the freedom of expression:
Moreover, whereas under section nine of the Declaration of 1789, every man is presumed innocent until has has been proven guilty… [this 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.
Of course, another version of the law, which seeks to address the Council’s concerns may eventually be introduced. Whether it will be politically possible to do so in the near future is not certain. Albanel had threatened to resign if the bill did not pass – whether another would be willing to push a ’softer’ version through the National Assembley in her stead (if she honours her threat) remains to be seen.
[Update: Catherine Saez at IP Watch writes that the two ways in which the law could still pass is by 1. fixing the unconstitutional portions or 2. approval of the law with the mention of the unconstitutionality of the relevant portions. Apparently, Minister Alabanel is aiming for the former approach, as she has stated that she would ask the French president and PM to amend the law to comply with the Constitutional Concil's conclusion. Claiming to be please with the decision, she stated that "the principle of a pedagogical device [notice emails?] to stop piracy was validated.”]
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