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French Three-Strikes Law Ruled Unconstitutional 195

Posted by timothy
from the note-that's-the-french-constitution dept.
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."
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French Three-Strikes Law Ruled Unconstitutional

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  • Good News For Once (Score:5, Interesting)

    by alain94040 (785132) * on Wednesday June 10, 2009 @02:05PM (#28282615) Homepage

    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 [fairsoftware.net]

    • by bedonnant (958404) on Wednesday June 10, 2009 @02:11PM (#28282707)
      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.
      • by Yvanhoe (564877)
        The equivalent of the US Supreme Court would be the European Court for Human Rights. EU still doesn't have a constitution and can't comment the constitutionality of national laws, but they can judge whether a practice (be it a law, an habit or a single case) is contrary to the declaration of rights every EU countries accepted.
      • > ...[while] the [S]upreme [C]ourt is a judicial body, ruling over a court case.

        The U.S. Supreme Court's function is to interpret the U.S. Constitution, not to hear general court cases. The appeal of court cases that involve novel interpretations of the Constitution, and that haven't already been adequately addressed by the Court, may be reviewed by the Court at its sole discretion.

    • by TheGratefulNet (143330) on Wednesday June 10, 2009 @02:11PM (#28282709)

      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: (Score:3, Funny)

        by Hurricane78 (562437)

        An usual, when someone does not mention special cases (eg the encrypted access), the global version (all kinds of access) is assumed.

        Besides, who says that "garbage data" is no "speech", when accessing the Internet is part of the freedom of speech?

        So let me freely say,

        -----BEGIN PGP MESSAGE-----
        Version: GnuPG v2.0.11 (GNU/Linux)

        (Filter error: That's an awful long string of letters there.)
        -----END PGP MESSAGE-----

    • by Le T800 (1137303) on Wednesday June 10, 2009 @02:12PM (#28282723)

      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.

    • by Arthur B. (806360)

      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!

      It's more likely to end up as a nasty positive right than as a defense of free speech.

  • right again (Score:5, Interesting)

    by CarpetShark (865376) on Wednesday June 10, 2009 @02:06PM (#28282631)

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

    • by sakdoctor (1087155) on Wednesday June 10, 2009 @02:08PM (#28282667) Homepage

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

    • Re: (Score:3, Insightful)

      by immakiku (777365)
      No. It's proof they have the weight of the constitution. That's different from ethics. Don't let this delude you into thinking that any and all forms of p2p are ethical.
    • Yet more proof that p2p users have the weight of ethics on their side.

      Er, no. This has nothing to do with a person who is illegally downloading music/movies/etc. being ethical in any way, only that such a person should be treated the same way as anyone else accused of a crime, i.e. they are assumed to be innocent until they are found guilty by a court, and only a court can remove their rights upon finding them guilty.

  • by Dan667 (564390) on Wednesday June 10, 2009 @02:06PM (#28282639)
    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).
    • Bad week if you are trying to force your failing business model to stay relevant like the RIAA

      I don't know, my "I'll trade you a handmade spear for that hamburger" buisiness is actually doing much better this week.

  • Sorry (Score:5, Insightful)

    by whisper_jeff (680366) on Wednesday June 10, 2009 @02:09PM (#28282673)
    Sorry Big Media Companies (tm), find another (legal) way to protect your dying business model. Or, better yet, adapt to the new reality...
  • by javacowboy (222023) on Wednesday June 10, 2009 @02:09PM (#28282677)

    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.

  • i am glad this was overturned, anyway if someone was banned from the internet whats to stop a banned individual from getting a laptop and going online via one of the many open wifi access points (which have to be many)
  • American perspective (Score:5, Interesting)

    by Hatta (162192) on Wednesday June 10, 2009 @02:17PM (#28282797) Journal

    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.

    • by thirty-seven (568076) on Wednesday June 10, 2009 @02:45PM (#28283169)

      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.

    • by sumdumass (711423)

      The difference here would be on the lack of adjudication. Any penalties imposed by a law has to have an adjudication where those effected can argue their innocence and contest the claims. There are even lines of thought that civil and punitive penalties outside the actual loss requires a criminal trial to fit with the constitution.

    • Re: (Score:3, Insightful)

      by Dragonslicer (991472)

      When a 3 strikes law passes here in the US, I wouldn't expect such a good result from our courts.

      The difference is that three-strikes laws in the US (at least the ones I've heard about) are about three convictions by a court, not three accusations by a private company. I'm not saying I agree with any three-strikes laws in the US, but at least they do go through the judicial system.

    • by Chris Burke (6130)

      The closest we get is a right to trial by jury, but that only applies in criminal proceedings.

      Presumption of innocence is inherent in the burden of proof, which even for a civil trial is still the preponderance of evidence. If the prosecution/plaintiff can't present any evidence that you are guilty/at fault then there's no reason for you to present evidence that you are innocent, because that is in fact the assumption barring evidence to the contrary.

      So yeah. Presumption of innocence is indeed part of our

  • Now, don't get me wrong, I agree that the government should not be handling such regulation, however if an ISP decided to enact such a rule as a private policy, I'm all for their right to do that. I would not necessarily be willing to choose that ISP, but no restriction should prevent them from making decisions that cause them to lose customers.
    • by sumdumass (711423)

      I would agree only to the extent that there are multiple ISP's in your area which aren't operating because of a grant of the public.

      In many locations, the only high speed ISPs are those who have public utility status and therefore have access rights that get past some of the technical restrictions barring competitors. Cable internet and Phone company DSL are examples of this.

      • Re: (Score:3, Insightful)

        by brian0918 (638904)

        In many locations, the only high speed ISPs are those who have public utility status and therefore have access rights that get past some of the technical restrictions barring competitors.

        Who does the blame lie with for these circumstances? The ISPs, or the city government? Who is enforcing the monopoly? Should a company be forced to comply with government requests because the government is withholding property for its own purposes and creating the monopoly?

        The solution is not to regulate the ISPs further, but to get rid of the regulation preventing competition from existing.

        • by Todd Knarr (15451)

          In many cases, the ISPs. Most phone companies (DSL) and cable companies (cable Internet) would only run service in an area on the condition that the government would grant them exclusive access to the right-of-way for that kind of service. So for the government it wasn't a choice between giving the cable company exclusive access or leaving it open to competition, it was between granting them exclusive access or them not serving that area. The usual argument they made was that they needed a guaranteed custom

          • Re: (Score:3, Insightful)

            by brian0918 (638904)

            In many cases, the ISPs. Most phone companies (DSL) and cable companies (cable Internet) would only run service in an area on the condition that the government would grant them exclusive access to the right-of-way for that kind of service.

            What right does the government have to enforce such a condition? If I tell the mafia that I'll only deal with them if they exclude my competitors from their black market, am I to blame for the black market, or is the mafia?

            Of course, if a community of property owners all agreed and signed a contract permitting exclusivity on their properties to one ISP, then they should be bound to that contract. It would have been foolish of them to sign such a contract without some exceptions in case the ISP tries to s

            • by Todd Knarr (15451)

              The government doesn't enforce that condition. The ISPs enforce it through the courts, by suing the local government if it breaches the contract it signed with them.

        • by Abcd1234 (188840)


          The solution is not to regulate the ISPs further, but to get rid of the regulation preventing competition from existing.

          Yes... because regulations are the only barrier to entry. After all, it's dead easy to get the rights to lay your own copper, right? And I'm sure it doesn't cost very much to do that kind of infrastructure rollout...

          • Re: (Score:3, Interesting)

            by brian0918 (638904)

            Yes... because regulations are the only barrier to entry.

            It's the only force-backed barrier to entry, yes.

            Given that nobody has a right to internet access, there can be no compelling an ISP to offer services in any area where it doesn't want to offer services.

            • Given that nobody has a right to internet access

              Getting back on topic, that's exactly opposite of what France just ruled; Internet access has become a necessary means of communication and therefore is a right of all people.

            • by Abcd1234 (188840)

              It's the only force-backed barrier to entry, yes.

              Uh, those aren't the only kind that lead to natural monopolies. Just FYI.

              Honestly, you really need to take a basic course in economics... it'd do you some good.

        • by sumdumass (711423)

          To answer in line,

          Who does the blame lie with for these circumstances? The ISPs, or the city government?

          The people, city and state governments. But only at their benefit which is why this isn't so important. If the ISP is there because of other agreements to benefit the community, then they can't or shouldn't take actions that counter that. It is the agreement that they benefited from all along after all.

          Who is enforcing the monopoly?

          Well, the answer actually goes through several agencies and governmen

  • by Mr.Fork (633378) <edward...j...reddy@@@gmail...com> on Wednesday June 10, 2009 @02:28PM (#28282925) Journal
    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.
  • 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.

  • by T Murphy (1054674) on Wednesday June 10, 2009 @02:36PM (#28283049) Journal
    "They argue that removing Internet access is equivalent to hindering a person's freedom of speech"
    I would much appreciate if US Congress took this to heart and forced ISPs to stop the anticompetitive behavior. Sure, if these corporations really want to charge exorbitant amounts for their top-tier services, that's their right as a business. But there is little reason to have such price gouging and consumer-abusive practices and horrible, out of date service. Yes, we have disadvantages like large rural expanses and suburban sprawl, but I would like to finally see some legal teeth put in place to get this country to where it should be.
  • by owlnation (858981) on Wednesday June 10, 2009 @02:39PM (#28283095)
    Vive la France!
  • by Maxo-Texas (864189) on Wednesday June 10, 2009 @02:40PM (#28283119)

    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 [wikipedia.org]
    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: (Score:3, Informative)

      by 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 [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."

      • by icebike (68054)

        "As all persons are held innocent until they shall have been declared guilty,

        Declared is a far cry from Proven.

      • by Maxo-Texas (864189) on Wednesday June 10, 2009 @04:26PM (#28284671)

        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.

  • Stop the presses! Common sense discovered in France!
  • Quote:

    This is obviously contrary to the constitutional principle of presumption of innocence.

    Question:

    Does France have such a presumption?

    Not trolling, I really don't know.

    • "tout homme etant presume innocent jusqu'a ce qu'il ait ete declare coupable..."

      Oh, and /.: IMPLEMENT UTF-8

      • by icebike (68054)

        Declared is a far cry from Proven.

  • Although, in this case "freedom" does indeed apply (without the sarcasm).

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