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France: Law on Favoring Diffusion and Protection of Internet Creations

(July 6, 2009) Law 2009-669 of June 12, 2009, on Favoring the Diffusion and Protection of Creations on the Internet, also known as the HADOPI Law, was published in the Journal Officiel, France's official gazette, on June 13, 2009, and came into effect that day. (Loi 2009-669 du 12 juin 2009 favorisant la diffusion et la protection de la création sur internet, LEGIFRANCE, (click on Les autres textes législatifs et réglementaires and search) (last visited June 30, 2009).) It did not, however, contain a controversial provision adopted by Parliament that would have empowered a new administrative authority, the Haute Autorité pour la diffusion des oeuvres et la protection des droits sur internet (High Authority for the Distribution of Works and the Protection of Rights on the Internet) (HADOPI), to deny Internet access to users who repeatedly and unlawfully downloaded protected work. This provision was found unconstitutional by the Constitutional Council. In France, the constitutionality of a law is reviewed prior to the law's entering into force. (Conseil Constitutionnel, Décision 2009-580DC du 10 juin 2009, Legifrance, (click on Les autres textes législatifs et réglementaires and search) (last visited June 30, 2009).)

Law 2009-669 aims at reducing online piracy. President Nicolas Sarkozy strongly supported the law, which originally proposed a graduated response (or “three strikes” process) to punish illegal downloading. The offender was first to receive a warning e-mail sent by HADOPI. A second warning e-mail would be sent accompanied by a registered letter if the offense were repeated within six months. Finally, a third violation in the next year would result in the suspension of Internet access for the user for a period ranging from one month to a year, depending on the gravity of the infringement and at the discretion of HADOPI. (Conseil Constitutionnel, id.)

The Constitutional Council did not object to the warnings system set forth in the provision, but struck down the authority of HADOPI to deny Internet access on two grounds. First, it found that under article 11 of the Declaration of the Rights of Man of 1789, the free communication of thoughts and opinions is one of the most precious rights of man and that this right includes access to the Internet. It further stated, “[f]reedom 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; infringements upon the exercise of this freedom must be necessary, appropriate, and proportionate to the aim pursued.”

Second, the Council noted that the provision undermined the presumption of innocence and the right to a fair trial. It wrote: “under article 9 of the Declaration of 1789, every man is presumed innocent until proven guilty; it follows that that in principle the legislature cannot establish a presumption of guilt in criminal matters.” The Council further found that this principle and the rights of the defendant are applicable to “any sanction having the nature of a punishment, even if the legislature has left the decision [to pronounce the sanction] to an authority that is non-judicial in nature.” (Conseil Constitutionnel, id.)

The President of the Republic and the government, however, did not give up on the idea of imposing some type of penalty for repeated illegal downloads. On June 24, 2009, the Minister of Justice presented a new draft law on criminal protection of literary and artistic property on the Internet before the Council of Ministers to replace the struck down provision. This draft, which only contains five articles, takes into account the decision of the Constitutional Council. (Portail du gouvernement, Conseil des Ministres, Protection Pénale de la propriété littéraire et artistique sur internet,
(last visited June 30, 2009).)