Privacy, Data Protection and Retention, Respecting Intellectual Property, Intellectual Property
Neetu Singh v. Telegram
India
Closed Expands Expression
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The French Constitutional Court held that certain parts of sections 5 and 11 of the Law No. 2009-669 of June 12, 2009 furthering the diffusion and protection of creation on the Internet, commonly known as the HADOPI law, were unconstitutional. Members of the National Assembly requested the French Constitutional Court to adjudge the legality of this law arguing that it gave an administrative authority, albeit independent authority, the power to suspend access to the internet for copyright infringement, which was a “patently disproportionate penalty” and constituted a violation of the fundamental right of freedom of expression and communication. They placed reliance on Article 11 of the Declaration of the Rights of Man and the Citizen of 1789. The Court ruled that although the Parliament was at a “liberty to lay down rules intended to reconcile the pursuit of the objective of fighting infringement of copyright on the internet with the right of free communication and freedom to speak, write and publish” under Article 34 of the French Constitution, it didn’t have the liberty to vest powers to suspend the internet in an administrative authority for the purpose of protecting holders of copyright and related rights.
On May 19, 2009, Members of the National Assembly made reference to the French Constitutional Court to adjudge the legality of the Law No. 2009-669 of June 12, 2009 furthering the diffusion and protection of creation on the Internet or commonly known as HADOPI law (an acronym for the Haute Autorité pour la Diffusion des Oeuvres et la Protection des Droits sur Internet/High Authority for the Dissemination of Works and the Protection of Rights on the Internet).
The parties challenged the constitutional validity of the sections 5, 10 and 11 of the said statute [p. 1]. Under section 5 of the Act, a new chapter comprising Articles L 331-12 to L 331-45 was introduced to the French Intellectual Property Code. These provisions led to the establishment of the “High Authority for the Diffusion of Works and Protection of Copyright on the Internet”. This new independent administrative authority was composed of a college and a committee for the protection of copyright, wherein the former was responsible for maintaining legal aspects of “works and property covered by copyright or related rights” and the latter had to monitor administrative penalties incurred by internet users failing to monitor access to the internet [p. 4]. Under section 11 of the Act, new Articles L 336-3 and L 336-4 were introduced to the French Intellectual Property Code which laid down a framework regarding the access to the internet and cases in which the internet could be suspended as a penalty if copyright was infringed [p. 5].
The relevant provision of this case, Article L336-3 of the Intellectual Property Code, stated that “A person who has subscribed to internet access to online public communication services is under a duty to ensure that said access is not used for reproducing, showing, making available or communicating to the public works or property protected by copyright or a related right without the authorization of the copyright holders provided for in Books I and II when such authorization is required” [p. 6].
Under this section if a person failed to comply with their duty (as mentioned above), the following penalties could be imposed [p. 9]:
1) Suspension of access to the Internet for a period of between two months and one year accompanied by the impossibility for the subscriber to enter into any other contract with any other operator for access to online public communication services.
2) An injunction to take, within a period determined by the Committee, measures designed to prevent any repetition of the breach of duty ascertained, in particular by installing a security device…., if need be, of payment of a financial penalty.
A person would not be liable in cases when the person had installed security devices, or if the infringement occurred due to fraudulent access to public online communication services or in the events of force majeure [p. 8].
Other relevant provisions related to suspension of the internet include:
1) Article L 331-28 – the High Authority’s Committee for the protection of copyright may, before initiating penalty proceedings, propose an amicable arrangement whereby the offending subscriber has his/her internet access cut off for a period of between one to three months, or is put under a duty to take the necessary steps to prevent the re-occurrence of said breach of duty;
2) Article L 331-30 specifies the contractual consequences of the suspension of access to the internet;
3) Article L 331-31 provides for the conditions in which internet access suppliers are required to proceed to withdraw access;
4) Article L 331-32 determines the manner for drawing up the list of devices of which the installation exonerates the access holder from all penalties;
5) Articles L 331-33 and L 331-34 set up a national register containing the names of persons whose access has been withdrawn;
6) Article L 331-36 allows the Committee for the protection of copyright to retain the technical data supplied to it until such time as access to the internet has been completely withdrawn [p. 10].
This judgement was delivered by the French Constitutional Court (Conseil constitutionnel). One of the central issues for consideration was whether suspension of internet due to copyright violations leads to infringement of the right to freedom of expression and communication guaranteed by the French constitution.
The case brings together two constitutional freedoms. On the one hand, the freedom to access Internet services, which must be understood “in the current state of the means of communication and in view of the development of the Internet and its importance […] for participation in democratic life and the expression of ideas and opinions” as falling within the scope of the freedom of communication and expression, enshrined in Article 11 of the Declaration of Human and Civic Rights. On the other hand, the right to property enshrined in articles 2 and 17 of the same text, which includes intellectual property rights and in particular copyright and related rights.
Contentions of the Plaintiff:
The parties contended that there was a violation of the fundamental right of freedom of expression and communication as the power to impose penalties in the form of withholding access to the internet was vested in an administrative authority, albeit independent authority, and in doing so introduced “patently disproportionate penalties” [p. 11]. They placed reliance on Article 11 of the Declaration of the Rights of Man and the Citizen of 1789 (Declaration of 1789) which states that “the free communication of ideas and opinions is one of the most precious rights of man. Every citizen may thus speak, write and publish freely, except when such freedom is misused in cases determined by Law”, and emphasised that right to access the public online communication services was necessary to exercise the right to expression of ideas and opinion [p. 12].
The plaintiffs also argued that “generalized control of electronic communications” was incompatible with the constitutional requirements of the right to privacy, since the power of the private agents “to collect the addresses of subscribers suspected of sharing files of protected works, was not accompanied by sufficient guarantees” [p. 21]. The parties further argued that the possibility “of blocking, by measures and injunctions, the functioning of telecommunications infrastructures might deprive many internet users of the right to receive information and ideas”. They also contended that the excessively wide and uncertain nature of this provisions may lead persons potentially concerned by section 10 to preventively restrict access to the internet [p. 37].
Contentions of the Government:
The main argument for enactment of the law by the Parliament was to protect the right to property enshrined in Articles 2 and 17 of the Declaration of 1789, an interpretation of which would also cover safeguarding copyright and other intellectual property rights.
Opinion of the Court:
The court ruled that the above-mentioned provisions violated the right to freedom of expression and the right to privacy for the following reasons: first, although the Parliament was at a “liberty to lay down rules intended to reconcile the pursuit of the objective of fighting infringement of copyright on the internet with the right of free communication and freedom to speak, write and publish” under Article 34 of the French Constitution [p. 15], the court observed that the Parliament didn’t have the liberty to vest powers to suspend internet in an administrative authority for the purpose of protecting holders of copyright and related rights [p. 16]. The court noted that the Committee, which was not a judicial authority should not be given the power to restrict or deny access to the internet, since these powers could restrict “the right of any person to exercise his right to express himself and communicate freely, in particular from his own home” guaranteed under Article 11 of the French Constitution [p. 16]. Second, while relying on Article 2 of the Declaration of 1789 which guarantees right to liberty and in turn right to privacy, the court observed that a right balance needed to be struck between the right to privacy of the citizens and protection of the right to property by the government [p. 23]. The court ruled that, “the fight against infringement of copyright by internet piracy is designed to achieve the objective of safeguarding intellectual property and cultural creation. However the authorization granted to private persons to collect data making it indirectly possible to identify persons having a right of access to online public communication services leads to these same private persons processing data of a personal nature in connection with offences. Such an authorization cannot, without constituting a disproportionate infringement of the right to privacy, have other purposes than to enable copyright holders to institute legal proceedings on the same footing as any natural person or legal entity who has been the victim of an offence” [p. 27].
For the above-mentioned reasons, the court held the sections 5 and 11 of the Act as unconstitutional.
The Court also examined the plaintiffs’ argument concerning the presumption of guilt established by the law. The principle of presumption of innocence is enshrined in article 9 of the Declaration of the Rights of Man and of the Citizen and prohibits, in principle, the establishment of presumptions of guilt in criminal matters. Such presumptions can be established, particularly in cases of offenses, as long as they are not irrefutable, respect for the rights of the defense is ensured, and the facts reasonably suggest imputability. In this case, the law established a presumption of guilt against the holder of the Internet subscription contract. The Court evaluated the validity of this presumption with regard to the conditions imposed by it. It thus recognized the applicability of the principle of presumption of innocence in matters of administrative repression, whereas it was previously excluded.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The court expanded freedom of expression by remarking that, “freedom of expression and communication are all the more precious since they are one of the cornerstones of a democratic society and one of the guarantees of respect for other rights and freedoms. Any restrictions placed on the exercising of such freedom must necessarily be adapted and proportionate to the purpose it is sought to achieve”. While highlighting this, the court ruled that restrictions on right to access internet should be proportional.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
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