France’s “three strikes” system has been temporarily disconnected, and a speed hump introduced.

On 10 June 2009, the proposed “third strike” – suspension of internet access without a court order – was ruled to be contrary to human rights by the French Constitutional Council.

The measure was found to contravene two articles of the French Declaration of Human Rights 1789:

(a)	article 11, which protects freedom of communication and expression; and
(b)	article 9, which contains the presumption that a person is innocent until proven guilty (i.e. before a court of law).

  
The Council held that any sanction affecting an unlawful downloader’s human rights must be proportionate and can only be issued with the sanction of a judge – not by an administrative, non-judicial authority.   The proposed right of appeal against a non-judicial decision was found inadequate for these purposes.  The Council’s ruling is final.

The French Minister of Culture, Christine Albanel, indicated in a statement that the legislation will be amended to make the third strike subject to a court order.  The amended law will need to be passed by the French Parliament.
 
Mme Albanel remains confident that HADOPI (the government authority tasked with administering the “three strikes” process) will start issuing the first warning notices in autumn 2009.

Comment

This is nonetheless a blow to the content industries, which have been lobbying hard across the world for a more efficient and cost-effective alternative to individual court actions for copyright infringement.

It should, however, make the French system less susceptible to challenge at European level (whether through the European Parliament or in the European Court of Human Rights). 

It will also inform the approach taken in other European jurisdictions, such as the UK, where the government has recently indicated that it will not take a “Draconian” approach to suspension of internet access.

One thing seems certain – determined infringers will get their day in court.

Ed Baden-Powell
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