French Govt to Fine ISP for Refusal to Send “Three-Strikes” Emails

French Govt to Fine ISP for Refusal to Send “Three-Strikes” Emails

Minister of Culture Frederic Mitterand has made good on his promise for a speedy amendment to France’s Article L331-25 of the Code of Intellectual Property, the modification now requiring the French ISP Free to submit email “three-strikes” warnings on the govt’s behalf or risk fines of 1,500 euros ($2094 USD), a process that was expected to several weeks rather than days.

Last week I mentioned how the French ISP Free was refusing to submit electronic “three-strikes” warning letters to its customers on the govt’s behalf as part of the “Creation and Internet” law, the controversial “three-strikes” measure to fight P2P that was formally passed last September. It cited Article L331-25 of the Code of Intellectual Property which says that warning letters shall be submitted by the Commission for the Protection of Rights “under its seal and on its behalf, electronically and “through” ISPs.

Free argued that the inclusion of the word “through” meant exactly that, and that if anything the govt need to setup a secure SMTP server within the ISP to contact its customers on their own.

Minister of Culture Frederic Mitterand “condemned” Free and called it a “formal breach of its statutory duties.” He vowed to issue a decree clarifying the requirement, a promise he lived up to recently, stunning many who thought the process would take at least several weeks and require formal tweaking of the “Creation and Internet Law.”

The decree reads:

Decree No. 2010-1202 of 12 October 2010 amending Article R. 331-37 of the Code of Intellectual Property

Section A. 331-37 of the Code of intellectual property is amended to read::

“Operators are required to submit electronically to the subscriber each of the recommendations referred to the first and the second paragraph of Article L. 331-25, within twenty-four hours after its submission by the Commission for the Protection of Rights. » “

The penalty for failure to comply is still the same – 1,500 euros ($2094 USD).

It’s still uncertain if the decree is legal, however, being that it still doesn’t change the law that requires the govt to send warning letters “under its seal and on its behalf, electronically” and “through” ISPs.

European Union law also requires that member countries notify it of any new laws punishing ISPs for noncompliance.

Free seems to be convinced it’s in the right, journalist Emmanuel Torregano, tweeting that “Free is preparing to tackle the Council of State this afternoon, more to come..”

It will likely argue that the regulatory authority for electronic communications and postal services was not consulted as required by law.

Either way, though Free seems to be battling over semantics – the “three-strikes” beast” reaming intact all the while – I must admit it’s nice that at least one ISP is forcing the govt to abide by the law as written and be the one to warn people on its own.

Stay tuned.

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Drew Wilson
Drew Wilson

I vaguely recall that there was some business laws which prevented the government from forcing such businesses to abide by unreasonable laws that would cause significant harm to said business. Some were arguing that ISPs like Free could simply use that law as a defense in court, thus knocking the three strikes law down a peg at least. There's also the possibility of billing the government huge sums of money over and above what I've calculated a while ago, making it become an issue of money. I also wouldn't be surprised if the ISP just sues the government for loss of general business after a while, arguing that the law has caused significant harm to the telecommunications business and that the accuracy of the accusations are highly questionable. Either way, I'm thinking that the ISPs in France aren't out of tools in the chest to fight this yet, but it could get dicey soon if a few of these attempts to protect their business fails.