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In France, the government has turned the prevention of P2P downloading into a political issue of great importance. The Creative Works and Internet Law (CNIL) recently came into force, passing through the French Parliament on the second attempt. CNIL created an independent enforcement authority designed to protect intellectual property on the Internet called the "Haute Autorite pour la diffusion des oeuvres et la protection des droits d’auteur sur Internet" (HADOPI), similar to the proposed Digital Rights Agency.
HADOPI was intended to be the means to implement a ‘three-strikes’ policy. If an alleged infringement of IP rights were detected HADOPI would send a customer a warning letter reminding him of his obligations and possible sanctions. If another infringement occurred within six months, HADOPI would send a second warning letter. If a further infringement occurred within a year of the second warning, HADOPI would suspend the account for between one month and one year, during which time the customer would not be allowed to enter into another agreement with another service provider to get access to the Internet. Internet Service Providers (ISPs) were required to comply with HADOPI’s rulings or be fined up to 5000 Euros.
Fundamental freedoms
On 10 June 2009 the French Constitutional Council ruled that the three-strikes procedure was unconstitutional. The Council was critical that the procedure empowered an administrative body to perform a role that ought to be performed by the judicial function. The French Constitutional Council also defended freedom of expression and communication as so valuable that their exercise is a "prerequisite for democracy". Any attacks on it would have to be necessary appropriate and proportionate. The new law was illegal as it breached citizens’ fundamental rights to privacy and free access to online communications.
Guilty until proven innocent
The Council also noted that the CNIL and the nature of the sanctions it was designed to impose presupposed guilt. While the procedure had an appeal mechanism, the burden of proof was on the Internet user to demonstrate his or her innocence. The Council ruled that it is a fundamental principle of French law that a person is innocent until proven guilty, and that the French legislature could not establish a presumption of guilt in this case even when they had left the decision making to an administrative body.
What next?
The decision would appear to send the CNIL back to the drawing board. However the French Government may resubmit the law, modified to take the court’s objections into account, for example by creating a special judicial court.
The Telecoms Package
The French Constitutional Council’s view is wholly consistent with the views of the European Parliament, which recently voted on an amendment to the wording of the proposed Telecoms Package stating that a user's Internet access may not be restricted without a prior ruling by judicial authorities. This amendment (actually a reinstatement of an old amendment that had been removed) means that the European Parliament have chosen a position that is at odds as regards the Telecoms Package compromise they had agreed with the European Council. As a result the Telecoms Package must go back to a renegotiation process known as conciliation.
The British Approach
Meanwhile the UK government has its own plans to legislate to address P2P file sharing. The government consulted on legislative options to tackle this issue last summer. This consultation revealed that there was no consensus between content owners, ISPs and consumer organisations about how best to prevent the current widespread and unauthorised downloading of copyright protected material (see here for more details). Having taken on board a variety of views, the government outlined its vision for the future in its Interim Digital Britain Report. The report recommended the creation of a Digital Rights Agency to coordinate attempts to prevent illicit file-sharing on the Internet. Recently the UK Intellectual Property Office canvassed views on how the Digital Rights Agency should operate.
The government is due to set out its plans, and to begin a fresh consultation on the issue, in the final Digital Britain Report which is due to be published on 16 June 2009. Giving an indication of what it may contain, Andy Burnham, who until recently was the Culture Secretary before being moved to the Department of Health, in a keynote speech at Music Week’s ‘Making Online Music Pay’ conference on 4 June referred to possible ‘technical solutions’ that could be employed as sanctions. It is not yet clear what those "technical solutions" would be, although Mr Burnham said they would involve ways to "limit or restrict" file-sharing activity.
The recent French decision is not binding on the UK Government but does highlight the importance of many of the underlying issues, such as consumers’ fundamental freedoms and the need to have appropriate judicial safeguards in place. This closely reflects the underlying provisions of the Convention on Human Rights, which are common to both jurisdictions. We keenly await the UK Government’s proposals to tackle P2P file-sharing in the Digital Britain Report.
In France, the government has turned the prevention of P2P downloading into a political issue of great importance. The Creative Works and Internet Law (CNIL) recently came into force, passing through the French Parliament on the second attempt. CNIL created an independent enforcement authority designed to protect intellectual property on the Internet called the "Haute Autorite pour la diffusion des oeuvres et la protection des droits d’auteur sur Internet" (HADOPI), similar to the proposed Digital Rights Agency.
HADOPI was intended to be the means to implement a ‘three-strikes’ policy. If an alleged infringement of IP rights were detected HADOPI would send a customer a warning letter reminding him of his obligations and possible sanctions. If another infringement occurred within six months, HADOPI would send a second warning letter. If a further infringement occurred within a year of the second warning, HADOPI would suspend the account for between one month and one year, during which time the customer would not be allowed to enter into another agreement with another service provider to get access to the Internet. Internet Service Providers (ISPs) were required to comply with HADOPI’s rulings or be fined up to 5000 Euros.
Fundamental freedoms
On 10 June 2009 the French Constitutional Council ruled that the three-strikes procedure was unconstitutional. The Council was critical that the procedure empowered an administrative body to perform a role that ought to be performed by the judicial function. The French Constitutional Council also defended freedom of expression and communication as so valuable that their exercise is a "prerequisite for democracy". Any attacks on it would have to be necessary appropriate and proportionate. The new law was illegal as it breached citizens’ fundamental rights to privacy and free access to online communications.
Guilty until proven innocent
The Council also noted that the CNIL and the nature of the sanctions it was designed to impose presupposed guilt. While the procedure had an appeal mechanism, the burden of proof was on the Internet user to demonstrate his or her innocence. The Council ruled that it is a fundamental principle of French law that a person is innocent until proven guilty, and that the French legislature could not establish a presumption of guilt in this case even when they had left the decision making to an administrative body.
What next?
The decision would appear to send the CNIL back to the drawing board. However the French Government may resubmit the law, modified to take the court’s objections into account, for example by creating a special judicial court.
The Telecoms Package
The French Constitutional Council’s view is wholly consistent with the views of the European Parliament, which recently voted on an amendment to the wording of the proposed Telecoms Package stating that a user's Internet access may not be restricted without a prior ruling by judicial authorities. This amendment (actually a reinstatement of an old amendment that had been removed) means that the European Parliament have chosen a position that is at odds as regards the Telecoms Package compromise they had agreed with the European Council. As a result the Telecoms Package must go back to a renegotiation process known as conciliation.
The British Approach
Meanwhile the UK government has its own plans to legislate to address P2P file sharing. The government consulted on legislative options to tackle this issue last summer. This consultation revealed that there was no consensus between content owners, ISPs and consumer organisations about how best to prevent the current widespread and unauthorised downloading of copyright protected material (see here for more details). Having taken on board a variety of views, the government outlined its vision for the future in its Interim Digital Britain Report. The report recommended the creation of a Digital Rights Agency to coordinate attempts to prevent illicit file-sharing on the Internet. Recently the UK Intellectual Property Office canvassed views on how the Digital Rights Agency should operate.
The government is due to set out its plans, and to begin a fresh consultation on the issue, in the final Digital Britain Report which is due to be published on 16 June 2009. Giving an indication of what it may contain, Andy Burnham, who until recently was the Culture Secretary before being moved to the Department of Health, in a keynote speech at Music Week’s ‘Making Online Music Pay’ conference on 4 June referred to possible ‘technical solutions’ that could be employed as sanctions. It is not yet clear what those "technical solutions" would be, although Mr Burnham said they would involve ways to "limit or restrict" file-sharing activity.
The recent French decision is not binding on the UK Government but does highlight the importance of many of the underlying issues, such as consumers’ fundamental freedoms and the need to have appropriate judicial safeguards in place. This closely reflects the underlying provisions of the Convention on Human Rights, which are common to both jurisdictions. We keenly await the UK Government’s proposals to tackle P2P file-sharing in the Digital Britain Report.
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