Subscriber Liability Still on the Books After Hadopi Defunded
Citing extraordinary costs and scant results, a high-level French official has announced intentions to defund Hadopi1, the government agency charged with shutting off Internet access of individuals accused of repeat copyright infringement. Under the French three strikes law, Internet subscribers whose connection is repeatedly used to share copyrighted material may be disconnected from the Internet and may even have to continue paying for the service (the so-called "double pain"). The three strikes law in France runs contrary to principles of due process, innovation, and free expression—yet has unfortunately served as a template for similar legislation in countries like New Zealand, the UK, and South Korea under pressure from the entertainment industry. Defunding Hadopi may mean that France won't be focusing on enforcing its three strikes law anymore, but that's not enough. France needs to repeal the three strikes law altogether.
When copyright holders (working through professional organizations) file complaints about alleged infringement, Hadopi is authorized to contact Internet access providers and issue warnings to subscribers. After the third warning of copyright infringement is issued to a subscriber, Hadopi can recommend to a public prosecutor that the individual have her Internet connection terminated. Hadopi also maintains a blacklist of subscribers to block users from simply switching ISPs after being disconnected. Though hundreds of alleged infringers have been referred to court—Hadopi has sent 1 million warning emails, 99,000 "strike two" letters, and identified 314 people for referral to the courts for possible disconnection—no one has yet been disconnected since the law was enacted in 2009.2
In speaking about the decision to significantly reduce funding for Hadopi, French culture minister Aurelie Filippetti, stated: "€12 million per year and 60 officials; that's an expensive way to send 1 million emails." Filippetti also stated that "[T]he suspension of Internet access seems to be a disproportionate penalty given the intended goal."
We're glad the French administration is acknowledging the enormous financial costs and inefficacy of Hadopi, and we couldn’t agree more that cutting off Internet access is an overblown legal response to alleged copyright infringement. But simply defunding Hadopi is not enough. The law that created Hadopi is still in place—a legal framework which, in years to come, could be funded once more and used to shut down Internet access of those accused of copyright infringement. Such laws have been expressly criticized by the UN Rapporteur on Freedom of Expression Frank La Rue, who reported that he was "alarmed by proposals to disconnect users from Internet access if they violate intellectual property rights," citing the French three strikes law specifically and condemning such frameworks as human rights violations. We second La Rue's concerns and add that the French law can terminate Internet access of subscribers merely accused of copyright infringement—regardless of whether a court ever proves that copyright was violated.
The three strikes law and the decree that was enacted shortly thereafter also created a dangerous negligence standard in which the Internet subscriber is liable for all unlawful activity on her network, even if the subscriber herself has no idea the connection is being used for unlawful purposes. Negligence in this context is defined as "not having put in place security measures” or having “lacked diligence in putting in place these measures"—perhaps even something as simple as a weak wireless password. This creates a new obligation to secure one's Internet connection, creating legal liability for individuals and businesses that open their wireless networks. This is in sharp contrast to countries like the United States, where subscribers have a number of protections if someone else uses their connection for unlawful purposes. The French law creates an unfortunate impetus for closed and/or carefully surveilled networks, which contributes to a world where open and accessible Internet is harder to find.
Repealing the three strikes law in France would send a powerful message to content industry lobbyists pushing an agenda of ham-fisted enforcement in countries worldwide. It would also help correct a legal imbalance that currently gives content owners unfair and disproportionate enforcement rights in France, at the expense of Internet users’ rights to read and access content online. So while EFF applauds France’s decision to defund Hadopi, we urge them to go a step further and repeal the three-strikes law altogether.
To combat the spread of these anti-speech laws, EFF and a range of international partners launched Global Censorship Chokepoints last year to document the spread of three-strikes proposals and coordinate efforts to fight them. We’re very proud to work with our partners in France, La Quadrature Du Net, in fighting the three strikes law there. And we’re also busy preparing to launch an Open Wireless Movement, a network of individuals and organizations promoting password-free WiFi. Stay tuned to Deeplinks and EFFector to learn more.