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By Pascale Gelly and Elisabeth Quillatre

The French Senate voted on the HADOPI law for protecting copyrighted works against infringement via electronic communications networks on May 13. (See “HADOPI,” on page 12 of the July, 2009 issue of the Privacy Advisor.) But this new law has given rise to controversy and will be challenged before the Constitutional Court, the Conseil Constitutionel.

In case of the unauthorized reproduction or distribution of protected works using a network, the law as passed provides for a so-called “graduated riposte”: (i) the network subscriber may receive a warning letter through the ISP, (ii) then the HADOPI Authority may send a second warning in case of repetition within six months, (iii) the Authority may request, after contradictory proceedings, the two to 12 month suspension of network access, or may issue an official injunction to take measures intended to prevent repetition of infringement, unless a settlement with the subscriber can be reached, if another infringement is committed within the year following the last letter.

The Constitutional Court believes three articles of the law include unconstitutional provisions.

In particular, the Court holds that the freedom of communication and expression is at stake, and that this freedom is implied nowadays “in view of the increasing spread of the Internet and its importance to the participation to democratic life and the expression of ideas and opinions...” Thus, access to the Internet is a fundamental freedom. Consequently, the Court determined that suspending Internet access could not be decided by an administrative authority such as the HADOPI, but only by a court of the judiciary system.

Moreover, the Court feels the law creates a presumption of guilt on the part of the Internet access subscriber, who may not be the person committing the infringement given that the Internet may have been accessed and misused by others. The Court considered that the related legal provisions were against the presumption-of-innocence principle.

In the end, a slimmer version of the HADOPI law was published in the Official Journal, allowing the warning messages to be sent to Internet subscribers in the event of copyright infringements. Any data processing implemented to locate infringers on the Web must be first submitted to the CNIL

Editor’s note: The French National Assembly  passed the revised draft law on September 15. Watch next month’s issue for more details.

Pascale Gelly and Elisabeth Quillatre of the French law firm Cabinet Gelly can be reached at pg@pascalegelly.com.

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