By Kirsten Fiedler

Despite many setbacks, bad publicity, budget cuts and a change of government, France is persisting with its Hadopi, a “three strikes law” and government agency to enforce copyright laws and fight online “piracy”. Even more worrying, the country’s Minister of Culture is now making moves to curb online rights even further.

In the past years, the budget of the Hadopi agency has slowly been reduced from 12 to 6 million euro for 2015 which will obviously have consequences for the capacity of the institution and the handling of the graduated response system. Faced with this challenge, the agency’s President Mireille Imbert-Quaretta held a meeting with the Minister of Culture, Fleur Pellerin, to discuss the agency’s report from May 2014
and the agency’s future.

As in the previous year, the agency’s report includes a longs wishlist of privatised enforcement measures. These include a review of the status of intermediaries, an introduction of a “notice and stay down” system as well as non-generalised filtering measures that rightsholders claim to be in line with the Scarlet/Sabam decision of the Court of Justice of the EU.

And the cosy meeting was all it took. During a session of the cultural affairs committee of the National Assembly on 14 October, the Minister of Culture Fleur Pellerin announced to be ready to renegotiate the budget of the agency. She even seems to be planning the creation of a new set of tasks for the Hadopi, such as the maintenance and publication of blacklists of allegedly illegal websites. In response to a question from a Member of Parliament regarding the Hadopi report, the minister responded:

There is a certain number of things in this report that appear to be extremely interesting and sensible. The Hadopi could probably implement certain of them. I’m now looking at those that would need legislative modifications or an inter-ministerial dialogue with the Minister of Justice. For example, the establishment and the publication of blacklists appear to be perfectly in line with the competencies of the Hadopi.

On the surface, the goal appears to be to educate the user of the sites to avoid visiting “illegal” websites. However, this proposal becomes more interesting when looking at it from a technical and legal perspective. According to the e-commerce directive and Article 6 of the French Confidence in the Digital Economy Act (loi sur la confiance dans l’économie numérique) intermediaries are not responsible if they are passively allowing the transfer of content between third parties. However, once the intermediary obtains actual knowledge of content which is declared “manifestly illegal” by the Hadopi agency, it would become liable if it is not acting fast enough to block access to such content.

More worrying still is the fact that the establishment of such blacklists by an administration (instead of on the basis of a court decision) strongly resembles censorship measures made in Turkey where a state agency – and not court orders – would determine the legality of a website. A similar system in Italy is now the subject of a review by the Constitutional Court.

Hadopi report: Operational tools to prevent and fight against online counterfeiting (only in French)
http://static.pcinpact.com/medias/rapport-outils-operationnels-fevrier-2014-vd.pdf

NextInpact: Fleur Pellerin promises backlists and a shining future for Hadopi (only in French, 15.10.2014)
http://www.nextinpact.com/news/90423-fleur-pellerin-promet-listes-noires-et-vie-en-rose-a-hadopi.htm

EDRi: After 3 Years: French authority Hadopi keeps proving its uselessness (23.10.2013)
https://edri.org/after-3-years-french-authority-hadopi-keeps-proving-its-uselessness/

EDRi: Hadopi wants to turn to privatised enforcement measures (13.03.2013)
https://edri.org/edrigramnumber11-5hadopi-wants-privatised-law-enforcement/

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