French Parliament Adopts Final “Three-Strikes” Bill

Now only judge can order Internet disconnection, but accused still not need be present and have no ability to present or dispute evidence.

The French Parliament has given its final approval to a “three-strikes” bill that will allow authorities to disconnect illegal file-sharers from the Internet after the National Assembly approved it 258-131, a day after the Senate approved it 285-225.

First proposed back in June of last year, the “Creation and Internet” law was later successfully passed before being ruled unconstitutional by the country’s Constitutional Council for the use of the Haute Autorité pour la Diffusion des Oeuvres et la Protection des droits sur Internet (HADOPI), a new govt agency whose task it would be to sanction those accused of illegal file-sharing.

It concluded that under the 1789 Declaration of the Rights of Man only a judge should have the power to disconnect individuals from the Internet, arguing that the Internet is essential for the “free communication of thoughts” and therefore full civic participation in a democracy. To curtail basic freedoms will hence require a trial and judge’s order rather than that of a dedicated body (HADOPI).

The new bill, dubbed HADOPI 2, satisfies those concerns by now allowing a judge to make the “third-strike” decision of either disconnecting an Internet user, a fine of up to 300,000 euros ($415,000USD), or a two-year jail sentence.

The problem with HADOPI 2 is that the accused need not be present nor can he submit or dispute evidence when the judge determines whether or not disconnection is warranted. This means that the whole process can occur entirely without the accused ever knowing. That is, until they wake up one morning and find themselves unable to connect to the Internet. This is an obvious violation of basic human rights under which the guarantee of a fair and free trial means having access to the court itself and to all relevant evidence for and against the accused.

“HADOPI 2 is supposed to give Internet users guarantees but it is just a spruced up version of the bill that was rejected by the Constitutional Council,” said Reporters Without Borders . “A new version submitted just days after the original’s rejection, emergency debates, accelerated procedures — everything is being done to deny legislators the time to properly debate a bill that threatens the right to Internet access, a right recognised as fundamental by the European Parliament.”

They also point out that HADOPI 2 doesn’t specify what investigative methods must be used and what kind of evidence must be collected.

“If it is an algorithm, there is every reason to fear it will be poor at distinguishing legal from illegal online activity,” it adds. “A detailed but innocent email exchange with a friend about a movie, for example, could be picked up by the algorithm. Similarly, how do you prove the innocence of someone whose IP address is hijacked for the purposes of illegal downloading, and no trace is left?”

Another interesting point is the fact that HADOPI 2 applies the odd punishment of restricting freedom of expression and communication for ostensibly having abused it. Of what other crimes where freedom of expression and communication are abused, i.e. slander, libel, do we make restrictions in a similar fashion?

The bill now only requires the signature of President Sarkozy to become law – although it could yet face another legal challenge from the Constitutional Council.

Stay tuned.

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