HADOPI raises from the dead, still as flawed

After the groundbreaking decision1 from the Constitutional Council of France, last month against the three strikes law adopted in May, the Government is re-introducing a reworked version of the so-called "graduated response". The inherent flaws of this system, aimed at fighting exchange of entertainment content through Internet, makes this new bill as dangerous as its predecessor.

The law rejected by the Council granted an executive agency (called HADOPI) the power to pronounce a penalty amounting to the suspension of file-sharers' Internet connection after two warnings. The Constitutional Council affirmed strongly that under no circumstance should people’s freedom of expression and communication be denied by a non-judicial authority.

In the decision, the ten justices referred to the Article 112 of the 1789 Declaration of the Rights of Man and of the Citizen (Déclaration des Droits de l'Homme et du Citoyen). This article states that "The free communication of ideas and opinions is one of the most precious of the rights of man". They added that Internet now plays an instrumental role in guaranteeing the effectiveness of that right – free speech – and therefore cannot be arbitrarily removed. To be even clearer, they emphasized its importance for citizens' "participation to the democratic life and the expression of ideas and opinions".

According to Article 663 of the French Constitution, the judiciary authority is the "guardian of the freedom of the individual" and as such is the only legitimate authority able to pronounce sentences involving fundamental liberties, which are at stake in this law as the Council asserted.

The new bill4 - named "HADOPI 2 - already adopted by the Senate (France's upper house of Parliament),contains the following provisions:

  • HADOPI receives complaints from copyright-holders and can submit statements to the judge;
  • Copyright infringements can be judged through a simplified judicial procedure;
  • It adds to existing penalties5 the suspension of Internet access for a duration of up to a year when counterfeiting is committed on the internet;
  • It anticipates the creation of a 1500€ fine for internet subscribers who fail to comply to the obligation of securing their internet access6 (and when it is subsequently used for non-authorized file-sharing). The judge could also decide a one-month internet suspension as complementary penalty.

However, by no means does this bill respond to the flaws outlined by the Constitutional Council:

    A summary justice that does not guarantee a fair trial

    The bill makes possible to judge copyright infringements through a “simplified procedure”, by which a single judge7 would examine the charges brought by the administrative agency. Such procedure – so far restricted to only a few categories of simple litigation such as traffic regulation – fails to guarantee the right to a fair trial:

    • It does not include any contradictory debate or public hearing;
    • The ruling is made without any prior judicial investigation.

    Obviously, this simplified procedure does not embrace the traditional judiciary protections and thereby violates the provisions of Article 6 of the European Convention on Human Rights8.

    Charges based on worthless proofs

    The proposed bill gives the HADOPI powers of judicial police that give the executive agency the ability to make statements of alleged copyright infringements through the collection of IP address on peer-to-peer networks. The judge would base its ruling on this statement. Yet, IP addresses cannot constitute a valid proof:

    • Fraudulent uses of IP addresses are widespread and no security software can protect an internet access from being hacked;
    • Researchers from the University of Washington have shown that identifying copyrights infringers based on IP addresses collected through peer-to-peer websites monitoring was an extremely precarious method9.

    It is then impossible to identify copyright infringers through IP addresses. The bill is all the more alarming given the fact that the simplified procedure would not allow for a thorough judicial examination of the validity of the proof.

    It is also worth noting that not only would the judge receive statements from an executive agency but would also rely on the latter to enforce their decisions. For that reason, the new powers given to the HADOPI appear to violate the principle of separation of powers.

    A threat to the presumption of innocence

    The bill's Article 1 provides that, “until proven otherwise”, the statements made by the HADOPI and presented before the judge are considered as evidence.
    However, in its decision on HADOPI 1 the Constitutional Council also contended that such presumption of guilt could only be acceptable if the penalty was not higher than a fine, and on the condition that:

    • the rights of defense be respected;
    • the facts “reasonably” infer the plausibility that the defendant is guilty.

    Yet, as we saw, dealing with copyright infringement through the “simplified procedure” doesn't not meet these two criteria:

    • this procedure does not guarantee the rights of defense;
    • IP addresses cannot be considered as reliable evidence of copyright infringement.

    Therefore, the graduated response still contravenes to the presumption of innocence. What is more, this amercement sanctioning the lack of oversight of one's internet access would co-exist with a one-month internet suspension, which constitutes a privation of liberty. So it is even dubious that the Constitutional Council would consider this new sanction as a mere fine.

    A deadlock on the rights of the public

    During the Senate debate on the bill, the new Minister of Culture, Frédéric Mitterrand, promised that he would consult the cultural industries and telecommunications companies to increase the revenues generated by cultural works on the internet and improve the legal distribution of these works.
    Although it is still unsure what the exact plan of the French government is, this announcement is clearly a delusion. Indeed, any new revenue for cultural works under the form of a statutory tax must go with new rights for the public – most notably the right for people to freely exchange cultural works for non-commercial purposes. The repressive logic underlying HADOPI 2 is fundamentally incompatible with such an evolution.

    Conclusion

    As it should be clear by now, HADOPI 2 merely seeks to reintroduce the graduated response. It mocks the Constitutional Council, who distinctly acknowledged that accessing the internet has become a core component of people’s fundamental rights - one that should not be dealt with lightly. We now hope that the National Assembly, who will debate the bill from July 21st on, will oppose the French government's stubbornness. Lawmakers must reject this new attempt to undermine people's freedoms for the mere sake of protecting old business-models that are profoundly unadapted to today's cultural practices.

    1. 1. http://www.conseil-constitutionnel.fr/conseil-constitutionnel/francais/les-decisions/2009/decisions-par-date/2009/2009-580-dc/decision-n-2009-580-dc-du-10-juin-2009.42666.html
    2. 2. See http://www.hrcr.org/docs/frenchdec.html#11
    3. 3. See http://www.assemblee-nationale.fr/english/8ab.asp#TITLE%20VIII
    4. 4. http://www.senat.fr/leg/pjl08-498.html
    5. 5. Up to 3 years of prison and a 300 000€ fine
    6. 6. The law passed in May created this obligation: internet subscribers should secure their connection by installing software aimed at preventing illegal file-sharing
    7. 7. French courts normally include a college of three judges.
    8. 8. http://www.hri.org/docs/ECHR50.html#C.Art6
    9. 9. Michael Piatek, Tadayoshi Kohno, Arvind Krishnamurthy, Challenges and Directions for Monitoring P2P File Sharing Networks – or – Why My Printer Received a DMCA Takedown Notice, University of Washington Department of Computer Science and Engineering
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