Will France Introduce the Digital Guillotine in Europe?

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Ever since DADVSI, the French implementation of the European Copyright Directive, Internet users in France have faced increasingly disproportionate threats of punishment for claims of copyright infringement. The latest scheme promoted by the content industry against unauthorized sharing of music and films on Internet is called “flexible response” or “three strikes, you’re dead”.

The principle is simple: repeated infringements result in getting cut off from the Internet. A claimed copyright infringer is identified by automated Internet traffic filtering and by a rightsholders’ denunciation. After a complaint to the ISP, a letter is sent warning the alleged infringer that he might be being cut off from the Internet. In the early versions of this scheme the punishing fines were to be sent out automatically, but the fines were later replaced by the proposal to cut off Internet access instead.

The proposal further includes the creation of an administrative authority responsible for enforcement, making sure the disconnected Internet users are not able to use the Internet again for a set period of time. The scheme is unclear as to the possibility to appeal a mistaken claim or to whether a punished Internet user can also be sued in a civil law suit. State authorised software for securing Internet connections has been proposed as one solution to uphold legal protection of innocent citizens.

Promoted by the French President Sarkozy, flexible response has become known as the suggested main measure in the Olivennes report, which until recently was generally thought to provide the basis for both French and European legislation to come. But not so any more; a majority vote in the European Parliament on the 10 April 2008 suggests otherwise.

In contrast to the French solution, the Swedish government has rejected such a regime as disproportionate. The Swedish Ministers of Justice and Culture concluded in March 2008 that ostracism from the Internet as punishment in a society whose daily activities are increasingly intertwined with the digitally networked environment is not proportional to the infringement of copyright, especially without intention for commercial gain. Its only justification, that of deterrence, has been shown repeatedly to be ineffective. The Swedish Government has also pointed out that large owners of media content should “not use the copyright laws to defend old business models” but should do more to provide attractive alternatives to unlicensed filesharing services.

In an effort to bring the Swedish Government’s policy decision to the European discussion, and to oppose Sarkozy’s plans, MEP Christofer Fjellner (EPP) initiated a cross partisan platform together with former French Prime Minister MEP Michel Rocard (PSE) and MEP Guy Bono (PSE), Rapporteur for the European Parliament’s Report on Creative Industries. Together they signed, with more than 90 MEPs supporting them, an amendment to the report which effectively rejects flexible response:

“Calls on the Commission and the Member States to recognise that the Internet is a vast platform for cultural expression, access to knowledge, and democratic participation in European creativity, bringing generations together through the information society; calls on the Commission and the Member States, therefore, to avoid adopting measures conflicting with civil liberties and human rights and with the principles of proportionality, effectiveness and dissuasiveness, such as the interruption of Internet access.”

Following the tabling, the internal debate over the amendment intensified and was complicated when the liberal group (ALDE) unexpectedly asked to split the amendment into two parts and vote on them separately, presumably to save flexible response. The first part related the Internet and the importance of rights and proportionality had overwhelming support, while the second part explicitly mentioning “interruption of Internet access” was harder to support for many French MEPs who would not go against the explicit will of their own government. However, with a close vote on the second part, the amendment ended up being passed in its entirety.

In the aftermath of the European Parliament’s decision, the French Minister of Culture, Ms. Christine Albanel, has clearly announced her intention to move on with the Olivennes proposal. She is currently planning to put it to vote in the French Parliament before the summer. Accordingly, to this date, there are no indications that Sarkozy’s decision to use the French Presidency to propagate this scheme at the European level has been revised.

In Brussels it is also unclear whether the initiative by MEPs Fjellner, Rocard and Bono will have an impact. Neither of them is listed as a speaker or moderator at the next High Level Conference on Counterfeiting and Piracy on the 13 May 2008, while MEPs who voted in favour of flexible response are. It is a matter of public interest to ensure that there is a balanced debate and that seats are reserved for politicians representing the European Parliament’s position on what otherwise risk to be a very controversial conference.

In media and the political blogosphere the impact of the vote is increasing. Of particular interest is the correlation between the Member States with a well developed Internet infrastructure and the way their MEPs voted: the digitally advanced Nordic countries have all clearly rejected the French digital guillotine.

Amendment 1 by Christofer Fjellner and amendment 2 by Michel Rocard and Guy Bono and others. Report Cultural industries in Europe. Rapporteur Guy Bono (2.04.2008)

High Level Conference on Counterfeiting (13.05.2008)

Press review

European Parliament Says No to Internet Ban (10.04.2008)

Digital economy : head or tail ? (20.04.2008)

Vote results Bono report

(Contribution by Jérémie Zimmermann – La Quadrature du Net and Erik Josefsson – EDRi-member Electronic Frontier Foundation)

[Opinion editorial published in EDRI-gram n°68, a biweekly newsletter about digital civil rights in Europe by EDRI. This text is licensed under the Creative Commons Attribution 2.0 License. See the full text at http://creativecommons.org/licenses/by/2.0/]