Digital Civil Rights in Europe

Article published in EDRi-gram 7.7 – 8 April 2009

Latest news from today – 9.04.2009 – show us that the French law has been rejected by the French Parliament. However a second reading of the text is possible, of the Government asks for it. More news in French.

An almost empty National Assembly voted on 2 April 2009 in favour of the extremely controversial law introducing the graduate response system in France, in spite of the fierce opposition from privacy campaigners, individuals, associations and even some French deputies.

The poor attendance of the Assembly at the vote is considered by some as one of the reasons for the success of the draft law so strongly pushed by the French Minister of Culture, Christine Albanel.

The approved text has undergone some modifications during the discussion in the assembly. One of the voted amendments is apparently amnestying all the Internet users sued for downloading. Actually the text refers only to users accused of counterfeiting in relation to related rights.

One of the few victories of the opposition in the National Assembly was the amendment allowing an Internet subscriber whose connection has been cut by Hadopi to stop paying for the respective subscription related to the Internet.

A so called Hallyday clause was voted, stipulating that illegal downloading will not be subject to sanction when the author of the downloaded work resides in a tax haven, such as is the case of French artist Johnny Hallyday (hence the name of the clause) who lives now in Switzerland and pays a minimum amount of taxes for the fortune he has earned in France from his works.

Differently from the initial text where the sanctioned Internet user had only 7 days to make an appeal to the court, the modified version allows now a period of 30 days for the formulation of an appeal, after the notification date.

Rapporteur Franck Riester introduced the proposal that Hadopi applies a label to the legal downloading sites thus favouring the legal offers. The amendment says that the search engines should thus emphasize the authorised sites. Faced with opposition arguments and questions related to whether this would force sites like Google to point out such sites, the rapporteur answered that Google should not be affected and that the proposal was only to create lists of legal sites.

The law gives entire freedom to Hadopi authority regarding the sanctions to be taken against infringers. The authority may either cut the connection of the user after three infringements or choose to ask the user to protect the connection against downloading. The measure is to allow an institution, such as a hospital, to keep its Internet connection. Therefore, a physical person may have his connection cut but not an institution. Still, the decision will belong to Hadopi authority which is free to choose the sanction according to the user.

On 2 April, the Culture Minister has also confirmed that the Internet users that want to be sure that they will not be considered liable under the Hadopi law, should install filtering software on their computers. This software, approved by Hadopi, will need to communicate with a remote server showing that the software is active at the moment the alleged infringement takes place.

Nicolas Maubert, attorney with Gide Loyrette Nouel, has argued that the Hadopi law could be in breach of the protections provided by the French Constitution and therefore might be challenged by the French judicial body.

“When a law seems so risky in its application, so unpredictable and random from the technical point of view, it is not a good law and it takes something from Courteline, a little from Kafka and a lot from Alfred Jarry”, stated opposition deputy Christian Paul.

Also, in view of the recent position of the European Parliament which has voted for guaranteeing the Internet access to all citizens as a fundamental human right, the French law may be is a critical position. However, during the debates in the National Assembly, on 30 March, Christine Albanel, stated that the European Parliament’s votes against the graduate response had no legal or political incidence.

And even if the point related to the cutting off of the Internet user is solved, Hadopi authority will still have the power to apply fines and other penalties and pass injunctions. French users who frequently download content illegally might soon find themselves severely fined.

As last minute news, on 7 April, the Joint Mixed Commission (Commission Mixe Paritaire – CMP), a commission including 7 deputies and 7 senators, supposed to agree upon a compromise text on the draft law before the law is sent for the final vote in the Parliament on 9 April, took its decision.

The graduated response mechanism proposed now is that Hadopy authority sends two electronic warnings, followed by a registered letter to the alleged illegal Internet downloaders. In case of non-compliance during a period of a year, the infringers’ access will be cut off for 2 months to one year or up to three months in case the user commits to stop the infringement. CMP rejected the amendment which proposed that Internet users sanctioned for alleged illegal downloading should stop paying their subscription. So, besides having their access cut off, they would also continue to pay for a service they will not be able to use. Furthermore, the commission rejected the amendment proposing an amnesty for Internet users prosecuted for illegal downloading before the entering into force of the law.

The Commssion has also reduced the present period of 6 months to 4 months from the issuing of a movie in cinema halls to the occurrence on DVDs.

In case the text is finally voted by the French Parliament on 9 April, the socialists, who consider the law as “inefficient, useless, technically inapplicable and which will not bring any euro to the creation”, will appeal to the Constitutional Council.

French pass ‘three strikes’ file-sharing law (3.04.2009)
http://www.theregister.co.uk/2009/04/03/french_three_strikes/

How the Assembly modified the Hadopi (only in French, 3.04.2009)
http://www.20minutes.fr/article/317785/High-Tech-Comment-l-Assemblee-a-modifie-l-Hadopi.php

The Création et Internet law adopted in a quasi empty Assembly (only in
French, 2.04.2009)
http://www.20minutes.fr/article/317513/High-Tech-La-loi-Creation-et-Internet-adoptee-dans-une-Assemblee-quasi-vide.php

Draft law favouring the distribution and protection of the creation on the
internet, modified by the National Assembly in first reading (only in
French, 2.04.2009)
http://www.assembleenationale.org/13/ta/ta0249.asp

Hadopi adopted (only in French, 3.04.2009)
http://www.ecrans.fr/Hadopi-adoptee,6848.html

Hadopi debates: catching up session for the week-end (only in French,
3.04.2009)
http://www.numerama.com/magazine/12532-Debats-Hadopi-seance-de-rattrapage-pour-le-week-end.html

Hadopi: The Mixed Joint Commission (CMP) advanced for Tuesday (only in
French, 6.04.2009)
http://www.numerama.com/magazine/12550-Hadopi-la-Commission-Mixte-Paritaire-CMP-avancee-a-mardi.html

Hadopi law: the “double pain” re-established before the final vote (only in
French, 8.04.2009)
http://www.challenges.fr/actualites/high_tech/20090408.CHA2775/piratage__la_cmp_retablit_la_double_peine.html

EDRI-gram: France: Three strikes law debated by the General Assembly
(25.03.2009)
http://www.edri.org/edri-gram/number7.6/3-strikes-france-assembly

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