Giovanni Maria Riccio is Professor of Private Comparative Law at the University of Salerno. Professor Riccio is an IP Osgoode Research Affiliate.
The French Constitutional Court held that the “Creation and Internet” law – the law promoted by the Olivennes Commission and strictly supported by the President Sarkozy – is unconstitutional.
This Act – whose complete name is “Loi favorisant la diffusion et la protection de la création sur Internet” – had instituted a special authority which was empowered to monitor copyright infringements committed by internet users.
The institution formed by the law (HADOPI: Haute Autorité pour la Diffusion des Œuvres et la Protection des Droits sur Internet – High Authority of Diffusion of the Art Works and Protection of the Rights on Internet) was entitled to use a special enforcement method in order to combat copyright violations. This method was based on the so-called “three-strikes” procedure. The HADOPI, once informed by a copyright holder of a potential violation, was expected to send an e-mail to the internet user, as identified by his IP (internet protocol address). After this notification, the user would be invited to install a filter on his PC and be monitored by his internet service provider. The second step would be introduced by a certified e-mail, after accusation of repeated offences or of failure to comply with the provisions set out in the first e-mail.
The third phase involved HADOPI’s power to request ISPs to suspend internet connections for infringing users for 2 months to 1 year.
It is remarkable that the French law did not provide a judicial recourse for the first 2 steps of the procedure, but only for the last one (which however couldn’t be stopped during the trial). After its approval, the Act has been strongly criticized by scholars, by consumer associations, as well as by the European Parliament.
The Constitutional Court considered the law unconstitutional for the following reasons:
a) article 11 of the Déclaration des droits de l’homme et du citoyen of 1789 protects freedom of speech and recognizes it as a fundamental right; access to an internet connection can be considered a human right, as an expression of the freedom of speech;
b) only a judge – or rather a judicial decision – can order the disconnection of users, not a non-judicial authority;
c) French law is based on the presumption of innocence. On the contrary, users are punished with disconnection based only on whether copyright holders assume that they could be liable;
d) the Act provides a procedure which violates data protection law and users’ personal rights.