Case Summary and Outcome

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.

Facts

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].

Decision Overview

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: 

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.