France: Second version of the three strikes law is in place

By EDRi · November 4, 2009

This article is also available in:
Deutsch: [Frankreich: Die zweite Version des Drei-Treffer-Gesetzes ist durchgesetzt |]

In a disappointing decision in comparison with its initial assessment on the
first three strikes law (called HADOPI 1), on 22 October 2009, The French
Constitutional Court validated the three strikes law with only one minor

The so-called Hadopi 2 law that was recently passed through both French
chambers was referred to the Constitutional Council by the opponents of the
law in the hope that the Court will once again find the text as
unconstitutional as it did in June 2009.

This time, the Court failed to acknowledge the infringement of several
liberties rights such as the right to due process and the presumption of
innocence and validated the text with just one amendment stating that the
judges will not be able to decide on civil damages during the same trial.
This means that in order to claim damages, the copyright holders will have
to bring a separate action to court.

“It is a sad day for liberties in France. The fact that a text such as
HADOPI 2 can be validated is very revealing of the state of our
institutions. The government will now have to face the consequences of the
unavoidable failure of the law, once it is implemented. What is ahead now is
a big price tag for taxpayers, unfair penalties, and resistance to these
repressive measures. French citizens can now rent IP addresses in countries
that do better at safeguarding rights and freedoms”, stated Jérémie
Zimmermann, spokesperson for La Quadrature du Net.

While deploring the Court’s decision, La Quadrature du Net considers the law
is anyway doomed from many points of view. Although it did not reject the
text, the Constitutional Court emphasized the role of the judge who is the
one to decide on the evidences brought by Hadopi authority and who can
refuse to impose any punitive actions. Therefore the application of massive
sanctions is illusory. And as many have already proven and reassessed
several times, it is technologically easy to bypass the measures imposed and
therefore entirely inefficient.

However, La Quadrature du Net believes that although the court may never
decide on cutting off the Internet access based on Hadopi authority
accusations and that probably nobody will be condemned for “characterized
negligence”, the validation of the law is a defeat of the Rule of Law, a
step back for civilization.

As expected the law has been signed by President Sarkozy and was published
in the Official Monitor on 29 October 2009.

Press Release of the French Constitutional Court (22.10.2009)

French Constitutional Court Decision Décision n° 2009-590 DC on the law
regarding the protection of the literary and artistic property on the
Internet (22.10.2009)

Who has won Hadopi battle? (only in French, 24.10.2009)

HADOPI 2 validated, a defeat for the rule of Law (24.10.2009)

Hadopi 2 validated, Nicolas Sarkozy is pleased (only in French, 22.10.2009)

Law 2009-1311 from 28 October 2009 – Law Hadopi 2 (only in French);jsessionid=A30626F1BC51E9C801BF8E4999391F35.tpdjo07v_1?cidTexte=JORFTEXT000021208046&dateTexte=&oldAction=rechJO&categorieLien=id

EDRI-gram: Deja-vu: France’s three-strikes law referred to Constitutional
Council (7.10.2009)