The French Constitutional Council censures the 3 strikes law

By EDRi · June 17, 2009

This article is also available in:
Deutsch: [Der Französische Verfassungsrat zensiert das 3 Treffer-Gesetz |]

As a result of the appeal of the Socialist Party, the French Constitutional
Council decided on 10 June 2009 that 3 strikes (known also as Hadopi)
draft law was infringing the Constitution and the Declaration of the Rights
of Man and of the Citizen from 1789 and rejected the most important parts of
the text. The graduate response was censured, the Council considering that
any sanction applied to Internet users could only be applied by a court.

In the Council’s opinion, the draft law infringes article 11 of the
Declaration which ensures the freedom of communication
and expression, that also applies to the online world, as the Internet is
nowadays a very important means of communication. The power to “limit the
exercise by any person of one’s right to express oneself and freely
communicate” cannot be given to an administrative authority. “These powers
can only be incumbent on a judge”, says the Council. This is the same
position expressed by several members of the European Parliament especially
by the introduction into the Telecom package of the well-known amendment

The Council also believes the law is in breach of article 9 of the same
Declaration that stipulates the principle of the presumption of innocence.
This principle was entirely ignored by the draft law where the text says
that a sanction can be applied to an Internet user presumed guilty: “By
ignoring article 9 of the Declaration of 1789, the law thus setting up, by
operating an inversion of the proof charge, a presumption of guilt that
could lead to the application to the subscriber of sanctions depriving or
limiting his rights”.

The Council also ruled that the method of policing the web envisaged in the
law was in breach of a citizen’s right to privacy fact which might influence
future decisions on other means of restriction or limitation, such as
filtering projects.

While the socialists asked the law be “completely rewritten with the double
aim of ensuring the financing of culture and preserving the freedom of
Internet users”, Christine Albanel, France’s culture minister, continued to
defend the draft bill, stating she regretted that she could not finalise
“the logic of ‘decriminalisation of Internet users’ behaviour by bringing
all stages of the procedure to a non-judicial authority”.

The law was promulgated by Nicolas Sarkozy on 13 June 2009 in its censored
form. A new text, named Hadopi 2, is to be presented to the French Council
of Ministers before the end of June in order to give judges the power to
apply sanctions. The text will have to observe the Constitutional Council’s
opinion. In any case, the law will be deprived of its core and the graduate
response is crippled.

The government may be in the position of having to consider the fine system
that it had rejected previously. The method has the advantage of seeing
immediate results and of not being in breach of fundamental rights. However,
even for a fine, material evidence will have to be brought in court to prove
an Internet user’s copyright infringement, which will be rather difficult to

The ruling of the Constitutional Council is in line with the arguments the
European Parliament which has tried to outlaw the French bill by the
introduction of amendment 138 into the telecom package. On 11 June, the
package was however rejected at the EU telecoms ministers meeting in
Luxembourg which means that the law will go through a conciliation process
mediated by the European Commission. This will begin in the autumn and the
legislation is expected to be passed only next year.

French Constitutional Court – Decision n 2009-580 DC of 10 June 2009 (only
in French, 10.06.2009)

The Constitutional Council censures the graduate response (only in French,

French anti-filesharing law overturned (10.06.2009)

Press Release of the French Constitutional Council on Decision n° 2009-580
DC (only in French, 10.06.2009)

Hadopi : the Constitutional Council censures the graduate response (only in
French, 10.06.2009)

Sarkozy tries to rescue internet law after court decision (12.06.2009)

French ruling raises hopes for EU telecoms deal (11.06.2009)

Hadopi law is promulgated in its uncensored part (only in French,

Hadopi 2 will be presented to the Council of Ministers by the end of the
month (only in French, 12.06.2009)

EDRI-gram: French Government hurries to put HADOPI law into application