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French Three-Strikes Law Ruled Unconstitutional

Posted by timothy on from the note-that's-the-french-constitution dept.

An anonymous reader was one of several to write with this news: "The French 'Conseil Constitutionnel' just ruled that the recently voted 'Hadopi' law, which enforces a 'three strikes and you're out' system, is actually unconstitutional [article in French; here's an English-language article at Ars]. They mainly make two points: 1) They argue that removing Internet access is equivalent to hindering a person's freedom of speech, and as such can only be decided by appointed judges. This removes all punitive power from the administrative body supposed to enforce the three-strikes rule; all it can do now is warn you that 'they're watching you.' 2) When illegal filesharing is detected, users have to prove their innocence. This is obviously contrary to the constitutional principle of presumption of innocence."

13 of 195 comments (clear)

  1. Good News For Once by alain94040 · · Score: 5, Interesting

    The French "Conseil Constitutionnel" is a joke compared to the US Supreme Court, but for once they made the right decision.

    At a minimum, the right to defend yourself and face your accuser was sorely lacking from the "3-strike" legislation. The French legal system already has the equivalent of the US small claims court, so there was no reason for the ISPs to become judges.

    The other good news is that the court is basing its decision on the fact that a right to communication (speech, really, if you translate into US constitution lingo) includes the right to access the Internet. That's pretty cool potentially!

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    1. Re:Good News For Once by sumdumass · · Score: 2, Interesting

      Let's say you wanted a "speech code" law overturned. The only way to do that, other than lobbying for the legislature to repeal the law, is to break the law by speaking in an illegal manner, and getting arrested. At this time, you now have recourse to try to get the law overturned. This is essentially what happened with the famous Scopes Trial. John Scopes intentionally broke the law by teaching evolution, for the purpose of testing the law in court.

      It depends on the law and how it is written. A speech law forbiding someone who is normally doing something from doing it, would have cause for challenge without becoming in violation of it. It's when it isn't normally done that you need to break the law in order to get standing. Or in other words, you have to show that the law concerns you personally somehow. Often this is after a violation but isn't required to be.

      A case in point, take the warrant-less wiretapping. Some think it was/is unconstitutional. You didn't have to violate the law to challenge it, you only had to show it affected you.

    2. Re:Good News For Once by ShadowRangerRIT · · Score: 3, Interesting

      Exactly.

      I don't really know which system I prefer. The French system evaluating laws without a court challenge is, in my opinion, better than the U.S. approach of requiring a court challenge, since a court challenge requires a lot of effort by a single person for marginal personal benefit. "Squeaky wheel gets the grease" is not a cliché I like to see when it comes to the law. On the other hand, there are some cases where the ability of justices to effectively dictate freedoms and rights without worrying about the next election allow for progress that might otherwise not accomplished by the legislature in a reasonable period of time. Many of the decisions of the Warren Court not only predated legislation, but may have pushed Congress into action it might otherwise have avoided.

      One significant advantage to civil law is the comparative simplicity. Yes, the laws tend to be more extensive, but they are theoretically less ambiguous, easier to reference, etc. The sheer volume of training and research required to be a lawyer in a common law system means that talented people are taken from productive work to apply the law, and the costs are commensurately higher without the long term benefits they might create in a research, engineering or even artistic discipline. By contrast, lawyers in a civil law system, while still requiring a certain minimum ability, need not be the best and brightest the country has to offer, and constitute a lower "overhead" cost to maintain the legal system.

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    3. Re:Good News For Once by sumdumass · · Score: 3, Interesting

      First, reasonable people can disagree about what the Constitution says. It isn't exactly lacking in vague wording.

      Actually, it isn't vague at all. The problem there is that society has moved and definitions as well as writing styles have changed since the time of it's writing. This means that in order to understand the meanings, you have to get into the time it was written and verify it by the debate surrounding the clauses.

      Second, just because the Constitution doesn't have a prohibition on a particular type of law doesn't mean it should still be allowed, at least IMO. That people would interpret the Bill of Rights as an exclusive list is why some founding fathers didn't WANT to have it. For instance, I feel that the result of Roe v Wade was the correct decision even though there's nothing in the Constitution explicitly to prevent anti-abortion laws.

      The argument against the bill of rights was similar in both directions too. One common argument against the bill of right basically stated that the bill of right was unnecessary because the constitution specified what the Federal government was allowed to do and without it being allowed to do more, then obviously protecting people against what the government can't do is unnecessary.

      I other words, the constitution itself was supposed to be the exclusive list of what the government was allowed or required to do where the bill of rights was the most obvious concerns over potential abuse.

      Now, if the government would stick to their constitutional role and limits, a lot of the laws on the books would have been impossible to implement. Also the vagueness wouldn't have been an issue because lawmakers would all be informed of not only the meanings but the intent of the constitution and it's amendments.

      I remember watching the news when Samuel Alito was being confirmed to the SCOTUS and they interviewed some California congress women who said they needed to take the hearing seriously because they can't have a court judge ruling everything congress does unconstitutional- congress can't do the work of the people that way. It's obvious to me that some need a refresher course in what the constitution is and what it means.

    4. Re:Good News For Once by JesseMcDonald · · Score: 2, Interesting

      Personally, I favor mandatory sunset clauses. Any law which can't maintain a simple majority vote in its favor gets thrown out automatically after so many years. Repealing a law before it expires should require no more than a 2/3 majority at two suitably-spaced sessions; actually passing a new law should require the maintenance of at least a 4/5 majority for three sessions.

      --
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    5. Re:Good News For Once by mdmkolbe · · Score: 3, Interesting

      I could imagine some important laws like those relating to treason or war-time crimes might not get used much but they still need to be on the books. You'll have to figure something out to handle those cases in your sunset law.

      Also keep in mind that most modern law is really a delta/patch that gets applied to the United States Code (USC), so automatically repealing a law gets tricky if other laws have later amended or reference it.

      (Laws older than about 50(?) years are generally not in the USC, but there is a current government project to repeal those laws and pass replacements into the USC. My understanding is that they annually send a bill with their latest work through congress and the bill almost always passes. Nevertheless, they still have quite a backlog. A project to remove unneeded laws could work the same way but would likely have the same slow pace and backlog. It would also be more politically charged (i.e. who gets to choose what laws are "unneeded").)

      Finally, I wonder we could get some inspiration from the mechanisms the military uses for keeping the Uniform Military Code of Justice (UMCJ) up to date. My understanding is that the UMCJ is remarkably un-crufty due to the military revising it as needed.

    6. Re:Good News For Once by varcher · · Score: 2, Interesting

      Nitpicking: Internet access is not a fundamental right. If it was, the goverment would have a mandate to ensure that each and every person has internet access. What it recognizes is that interference with internet access is an interference with free speech, which is slightly different.

  2. right again by CarpetShark · · Score: 4, Interesting

    Excellent. Yet more proof that p2p users have the weight of ethics on their side.

  3. American perspective by Hatta · · Score: 4, Interesting

    When a 3 strikes law passes here in the US, I wouldn't expect such a good result from our courts. The first problem is that freedom of speech in America doesn't guarantee you access to a forum to be heard. Second, there is no presumption of innocence in our Constitution. The closest we get is a right to trial by jury, but that only applies in criminal proceedings.

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  4. Liberté, Egalité, Fraternité by owlnation · · Score: 4, Interesting

    Vive la France!

  5. No presumption of innocence in France. by Maxo-Texas · · Score: 3, Interesting

    There isn't a presumption of innocence.

    There isn't quite a presumption of guilt either. As the wiki says:
    http://en.wikipedia.org/wiki/Napoleonic_Code
    The possibility for justice to endorse lengthy remand periods was one reason why the Napoleonic Code was criticized for de facto presumption of guilt, particularly in common law countries. However, the legal proceedings certainly did not have de jure presumption of guilt; for instance, the juror's oath explicitly recommended that the jury did not betray the interests of the defendants, and took attention of the means of defense.

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  6. Re:Clarification by brian0918 · · Score: 2, Interesting

    Yes... because regulations are the only barrier to entry.

    It's the only force-backed barrier to entry, yes.

    Given that nobody has a right to internet access, there can be no compelling an ISP to offer services in any area where it doesn't want to offer services.

  7. Re:Art. 9 declaration of the right of man, 1789 by oliderid · · Score: 3, Interesting

    See you can tell the parent poster really is French because he doesn't bother to translate the quote!

    Come roots are so obvious:

    • "presume" -> presumed
    • "Innocent" -> guess what
    • "declare" -> declared
    • "coupable" -> guilty (Culpable)

    the rest

    • Tout (any)
    • etant (To be)
    • Jusqu'a (until)
    • ce qu' (that)
    • il (he)
    • a ete (has been)

    So a literal translation is
    Any man is presumed innocent until he has been declared guilty

    Englishspeakers don't understand the chance they've got to master a language half germanic/half roman. You've got everything you need to decypher most western european languages.