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

[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.

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...

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.

Re:Court's self interest

[Mikkeles]

Except that the Conseil Constitutionnel is not a court.

Liberté, Egalité, Fraternité

[owlnation]

Vive la France!

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.