French Three-Strikes Law Ruled Unconstitutional

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."

Comments

Good News For Once

[alain94040]

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!

--
pour les developpeurs qui n'habitent pas dans la Silicon Valley: FairSoftware

Re:Good News For Once

[bedonnant]

The conseil constitutionnel is not a joke compared to the US Supreme Court, it's just something completely different. It validates or invalidates laws passed by parliement, when the supreme court is a judicial body, ruling over a court case.

Re:Good News For Once

[TheGratefulNet]

lets hope that (the world) takes this further and embraces the right to encrypted speech as well as free speech.

you know what I'm referring to. those that listen in, just because they're too bored or unable to find the real 'bad guys'.

if internet access is a 'right' then the ability to communicate without some 3rd party listening in should also be a right.

Re:Good News For Once

[Le T800]

To clarify a bit, the "Conseil Constitutionnel" in France is supposed to check that new laws respect the principles of the French Constitution, which is supposed to respect the principles of the "Men and Citizens's Right Declaration" from 1789.
From now Internet in France is recongnized as a fundamental right, associated to the right to communicate freely.

Re:Good News For Once

[mrex]

Wrong, the United States Supreme Court can review and declare a law unconstitutional.

Only in connection with a court case brought by an entitled petitioner.

Re:Good News For Once

[Chabo]

But SCOTUS can only rule a law unconstitutional based on a court case. Someone affected by the law must sue the appropriate government entity before any court can rule on it.

For example, in the original case that led to D.C. v Heller from last year, the plaintiffs had to have applied for a firearm permit under the current system, and been denied. Then the denial would be the basis of the case.

Re:Good News For Once

[KDR_11k]

France uses civil law which means a court's decision is not a law, the US uses common law so deciding a court case there can very well make a new law. So in the US being a court implies being able to make or remove laws while in France that's a separate set of permissions.

Re:Good News For Once

[SydShamino]

Yeah, unfortunately our three branches system lacks an entity charged with removing laws with no effect.

The courts won't do it. Congress doesn't care. The executive likes them because they can threaten people with them, or ruin someone's life with them, then drop the case before it gets to the court and is thrown out.

A fourth body, who job it was to review all laws, and propose a list each year (based on criteria like "law on the books for a decade with no convictions based on it" or similar) that would be automatically stripped from US code unless congress and the president specifically re-approved and re-signed them.

That should be one of congress's jobs, but they have no interest in spending time on "old business".

Re:Good News For Once

[Ornedan]

The problem with that attitude is that by the time you can start the process of removing a bad law, it's already done damage. I'd prefer the approach where the stupidity isn't allowed to happen in the first place - no-one gets hurt and less resources are spent.

Also, if a law has no effect, then IMO it should be gotten rid of. It will still cause unnecessary overhead by having to be checked for effect in potentially related cases.

Re:Good News For Once

[ShadowRangerRIT]

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.

Re:Good News For Once

[ppanon]

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.

Except that's exactly the opposite of what did happen, isn't it? People who tried to challenge the law had their case thrown out because they couldn't prove that they had been subject to a warrantless wiretap. They were in a catch-22 because the government wouldn't confirm that the plaintiffs had been wiretapped, refusing subpoenas from the plaintiffs on national security grounds, and the court wouldn't give the plaintiffs standing unless they could prove it had happened to them.

Re:Good News For Once

[sumdumass]

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.

Re:Good News For Once

[sjames]

Which is a MAJOR problem. You have to knowingly break the bad law and then take it to the Supreme Court on your own dime. If they disagree with you, you go to jail.

Re:Good News For Once

[mdmkolbe]

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.

right again

[CarpetShark]

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

Re:right again

[sakdoctor]

Not all p2p users are ethical. Some don't seed.

pretty good week for people

[Dan667]

With this and the Pirate Party winning and EU seat, great news. Bad week if you are trying to force your failing business model to stay relevant like the RIAA (Sony, Warner Bros, Universal, and EMI).

Sorry

[whisper_jeff]

Sorry Big Media Companies (tm), find another (legal) way to protect your dying business model. Or, better yet, adapt to the new reality...

Court's self interest

[javacowboy]

It sort of makes sense, when you think about it. Why should the courts cede power to a non-judicial "administrative body" to rule against people. Stands to reason the courts would like a monopoly on those types of judgements.

Re:Court's self interest

[Mikkeles]

Except that the Conseil Constitutionnel is not a court.

American perspective

[Hatta]

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.

Re:American perspective

[thirty-seven]

Second, there is no presumption of innocence in our Constitution.

The words "presumption of innocence" are not in the U.S. constitution, but it does guarantee "due process" in the fifth amendment.

The U.S. constitution was not written in a legal/historical/social vacuum, although, based on my first-hand experience talking with knowledgeable Americans, many of them seem to presume that the Founding Fathers were the first to invent or recognize the rights guaranteed in the constitution. But it is basically about guaranteeing rights that Englishmen had but that the American colonists were being denied. The U.S. Founding Fathers were quite insistent that they had certain "rights as Englishmen" that they were being unfairly denied.

So "due process" is not a meaningless phrase in the constitution - it means the sorts of process and protections that were common in the English system (i.e. common law), which is the inheritance of the U.S. and other countries, like Canada.

Interesting development

[Mr.Fork]

What I find interesting is the spin on privacy. Here in Canada, our privacy law is one of the reasons why file sharing has been hard to crack down on. The ability to remain anonymous and retain your privacy rights blocks most ISP's from packet-sniffing on behalf of 'special interest groups' - it also requires a court order: the judge will ask 'what proof do you have' and then ask these groups to explain how the gathered that proof without violation of Privacy laws. Even the current 'throttling' may be violating my privacy of internet usage as it would prove my ISP is scanning and reading my traffic information - which is a violation of my privacy rights of internet usage.

Liberté, Egalité, Fraternité

[owlnation]

Vive la France!

No presumption of innocence in France.

[Maxo-Texas]

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.

Re:No presumption of innocence in France.

[Anonymous Coward]

In fact there is. The most supreme text in law is the Constitution, and its preamble is the Declaration of the Rights of Man and of the Citizen, which at article 9 states:

"As all persons are held innocent until they shall have been declared guilty, if arrest shall be deemed indispensable, all harshness not essential to the securing of the prisoner's person shall be severely repressed by law."

Re:No presumption of innocence in France.

[Maxo-Texas]

You are correct.

http://en.wikipedia.org/wiki/Government_of_France

Apparently this changed in 1958.
A popular referendum approved the constitution of the French Fifth Republic in 1958, greatly strengthening the authority of the presidency and the executive with respect to Parliament.

The constitution does contain a bill of rights in itself, but its preamble mentions that France should follow the principles of the Declaration of the Rights of Man and of the Citizen, as well as those of the preamble to the constitution of the Fourth Republic. This has been judged to imply that the principles laid forth in those texts have constitutional value, and that legislation infringing on those principles should be found unconstitutional if a recourse is filed before the Constitutional Council.[1] Also, a recent modification of the Constitution has added a reference in the preamble to an Environment charter that has full constitutional value.[2]

Among these foundational principles, one may cite: the equality of all citizens before law, and the rejection of special class privileges such as those that existed prior to the French Revolution; presumption of innocence; freedom of speech; freedom of opinion including freedom of religion; the guarantee of property against arbitrary seizure; the accountability of government agents to the citizenry.

the article repeats and enforces this later:

Trial by jury is virtually unknown in France, except for severe criminal cases which are the jurisdiction of the Courts of Assizes. A full Court is made up of a 3-judge panel and a petty jury of 9 jurors (vs. 12 jurors on appeal), who, together, render verdicts, and if a conviction is handed down, also determine a sentence. Jurors are selected at random from eligible voters. Pre-trial proceedings are inquisitorial by nature, but open court proceedings are adversarial. The burden of proof in criminal proceedings is on the prosecution, and the accused is constitutionally presumed innocent until proven guilty.

Reading here: http://en.wikipedia.org/wiki/Napoleonic_code
It looks a little more complicated.
Bonaparte himself was against presumed guilt and for presumed innocence.
But, in practice, people could still be put into jail for long periods before the trial's preceeding serious crimes.

However, speaking from personal experience- in Texas, a person we found innocent (clearly innocent) had spent more than a year in jail for a medium crime (non-injury arson) because he couldn't afford jail. So effectively he was imprisoned for a year on a false accusation made by a convicted felon.

--
The summary is that presumption of innocence started under Bonaparte and grew in 1958. And people probably still sit in jail unable to make bail (just as they do elsewhere).

I'd always thought France had a presumption of guilt and *based* on Napoleon. I was completely wrong. Interesting.

Re:So what? People stay at bat all day??

[gnick]

Welcome to cricket...

And that means you're taking a risk.

[Ungrounded Lightning]

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.

And that puts you at risk: You have to carry through and win - which may take years and millions of dollars. Unless you win (and UNTIL you win) your rights are reduced because of the accusation of lawbreaking and the ongoing legal proceeding. And if you lose (or drop out) you also have a penalty applied for your "criminal behavior" in breaking the law in order to obtain the standing to argue for its unconstitutionality.

Not only that, but you have to take it all the way to the supreme court to make it stick nationally (or you and others have to take it to the appellate level in all of the federal circuits). And you have to LOSE at the trial level (and either lose at the appellate level or win but have the prosecutor appeal your win) to get to the supremes. And you have to have the prosecutor keep pushing rather than throw in the towel on your PARTICULAR case - something he may not do if you're fighting back and have a good point. And at the appellate level it may take two passes - once with a three-judge subset, a second time with the full set. Also: Once you've lost at the appellate level there's no guarantee that the Supremes will agree to hear the case - and they usually won't unless there are divergent rulings on two near-identical cases in two appellate districts.

To get through that process you need some people typically more expert in law than you to think that you're wrong. So that means your case has to be iffy. Which means you might not win even if you navigate the maze correctly and the Supremes deign to spend time on you. You're playing "court roulette" with only one empty chamber in the revolver.

I think this is one piece of politics/law where the French have a better idea.

Re:Art. 9 declaration of the right of man, 1789

[oliderid]

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.