French Three-Strikes Law Ruled Unconstitutional 195
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."
Re:Good News For Once (Score:5, Informative)
Re:Good News For Once (Score:5, Informative)
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 (Score:5, Informative)
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 (Score:5, Informative)
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 [wikipedia.org] 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 (Score:5, Informative)
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.
Gah, I've been too slow! (Score:2, Informative)
Ah well, I can't say I'm surprised that several people have been faster than myself to submit that story.
Anyway, since I'd be offtopic if I posted just to say that, here's a link to the reaction of the association "La Quadrature du Net", spearhead of opponents to the law: Hadopi is dead: "three strikes" buried by highest court. [laquadrature.net] They deserve credit for their hard work.
Re:Court's self interest (Score:5, Informative)
Except that the Conseil Constitutionnel is not a court.
Re:right again (Score:2, Informative)
You're deliberately mis-quoting. You posted "Any and all", but disputed "any". Yes, there are legitimate forms of p2p. There are also unethical forms of p2p. As GP said, not ALL forms are ethical.
Karma bonus foregone, 'cuz I'm just correcting a dumb-ass, not contributing anything useful.
Re:American perspective (Score:5, Informative)
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:No presumption of innocence in France. (Score:3, Informative)
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 [hrcr.org], 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:Good News For Once (Score:1, Informative)
To be fair, if a law doesn't effect you, then it doesn't effect you.
I find that very few people are caused by laws, in genral. I suppose that one could argue that an over-turn of Roe vs Wade could effect people, but is much more likely for a law to affect someone.
And that means you're taking a risk. (Score:5, Informative)
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:Good News For Once (Score:5, Informative)
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:No presumption of innocence in France. (Score:4, Informative)
You are correct.
http://en.wikipedia.org/wiki/Government_of_France [wikipedia.org]
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 [wikipedia.org]
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.
Art. 9 declaration of the right of man, 1789 (Score:3, Informative)
"tout homme etant presume innocent jusqu'a ce qu'il ait ete declare coupable..."
Oh, and /.: IMPLEMENT UTF-8
Re:No presumption of innocence in France. (Score:1, Informative)
Let me correct that : in France, we have what is called the "burden of proof". It means basically that the one party with this "burden" has to produce evidence he's right. For example, if I say you're infringing copyright, the burden is mine : I have to produce enought evidence to actually PROVE that :
- the copyright is mine to enforce
- you are indeed in breach of it
Until I have proven this, the defendant won't have to produce any evidence of his own to dismiss the case.
so, in essence "innocent until proven guilty"
In some (very rare) cases, the "burden of proof" is reversed, and the defendant has to prove h'es not guilty, but these are very rare cases, and specified as such by Law.
Re:Good News For Once (Score:2, Informative)
Man, you're stupid. Effect does indeed mean bring about, but that's the same as cause. It sure as hell doesn't mean influence or change. By some coincidence that's surely down to a conspiracy against you, that's precisely what the other spelling means.
By the way, the adjectival form (and past participle) of "force" is "forced". This isn't exactly a rare construction.
Just admit you were wrong and get over it. Really, being a barely literate and fairly ignorant cunt is one thing, but don't try and deny it - the fact is that you are one. End of.
Re:Nope (Score:3, Informative)
Not believing that there is a god is different from believing that there is no god. The latter is atheism, the former is 'not believing in God(s)'. So no I'm not saying that that is a religion. That is, in fact, agnosticism.
Re:right again (Score:3, Informative)
And these are the people the RIAA don't go after.