June 10, 2009 | By Danny O'Brien

France Declares Three Strikes Unconstitutional

Before legislation becomes law in France, it must pass the muster of the Conseil Constitutionnel: a group of jurists who determine whether each new law is consistent with the principles and rules of France's constitution.

For the passage of Sarkozy's unpopular "three strikes" HADOPI legislation, the approval of the Conseil was the final hurdle to cross. If the council had approved the law, rightsholders in France would have been able to cast French citizens off the Internet with no judicial oversight, simply by alleging to the new HADOPI administrative body that they were repeat copyright infringers. These citizens would then have their names added to a national Internet blacklist for up to a year, and ISPs would be subject to financial penalties if they gave these exiles access to the Internet.

Today, the Conseil declared the most important parts of HADOPI unconstitutional, and invalidated HADOPI's ability to issue termination orders to ISPs. In doing so, it seems to have effectively put an end to the central idea behind France's Three Strikes law - the creation of an expedited (and potentially due process-free) administrative process for terminating citizens' access to the Internet.

In a clear rebuke, the Conseil stated that the French legislature did not have the right to pass controls on Internet access to a non-judicial authority, as this would violate Article 11 (the right of freedom of speech) of the 1789 Declaration of the Rights of Man; and that in bypassing judicial review, the law also violated Article 9, which states that all are presumed innocent until declared guilty.

This stark recognition that HADOPI goes against two of the most basic, universal, human rights should give any government pause before considering adopting similar legislation. Given the continuing failure of efforts to introduce HADOPI-like plans in New Zealand (where the government backed down), Ireland (where ISPs stood up), and now in France, will global policymakers now resist the media industries' push for these wrong-headed termination proposals, and seek more reasonable and just solutions to the challenges these businesses now face in the digital age? Let's hope that the French constitutional court's rejection of HADOPI marks the final strike for "three strikes".

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