Yet another adoption of liberty killer “three strikes” law in France.

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Paris, September 22nd, 2009 – The French Parliament has adopted HADOPI 2, a law aimed at establishing a so-called “three-strikes” policy in order to fight file-sharing. The Constitutional Council made groundbreaking decision on June 10th 2009 that recognized access to the Internet as essential to the full exercise of free speech, and invalidated the sanctioning power of HADOPI 1. The law HADOPI 2, despite the internet cutoff now being handled in an expedient form of judicial justice, it is as flawed and dangerous as its predecessor, for it was only designed to circumvent the Constitutional Council’s decision. The war on sharing continues its way as HADOPI 2 will go through the constitutional test again.

After an expedient democratic debate, in which valid alternatives to the war on sharing and possible futures for the cultural economy were systematically ignored by the bill’s proponents, the “three strikes” policy might become law. It has already been a long process, after the Members of the European Parliament expressed on three occasions their strong criticisms of the French government’s plan. After a first rejection of the law and a second vote in France, the Constitutional Council eventually followed the European Parliament in stating that Internet has become a vital component of the freedom of expression and communication, thus invalidating punitive provisions of the HADOPI 1 law.

Yet, this new law is still as dangerous and flawed as the previous one. First of all, HADOPI 2 fails to guarantee the right to a due process. Instead of giving sanction powers to an executive agency, as HADOPI 1 did, it makes possible to judge copyright infringements and order Internet cutoff through a “simplified judicial procedure”. This procedure does not include any contradictory debate or public hearing, and all kind of prior judicial investigation will be left out. Moreover, the Internet cutoff can be ordered as a complement for a standard fine for “negligence” in securing one’s Internet access.

Second, alleged infringers would still be convicted on the sole basis of IP addresses that cannot be considered as valid evidence, and which are collected by private actors. And since one has no material way of opposing the validity of these “evidences”, this new version of the graduated response still clearly violates the presumption of innocence. It is now up to the Constitutional Council to examine the law, and draw the necessary conclusions.

“HADOPI 2 is still as dangerous as the first one, infringing on freedom of expression and communication, and still bound to fail. The repressive logic underlying the ‘three strikes’ is fundamentally incompatible with an inevitable evolution towards increasing the revenues generated by cultural works on the internet, while accompany the right for people to freely exchange cultural works for non-commercial purposes. Let’s hope that the Constitutional Council will once again protect French citizens’ fundamental rights.” concludes Jérémie Zimmermann, co-founder of the citizen advocacy group La Quadrature du Net.