HADOPI

Introduction

France has now adopted the HADOPI law, the “law promoting the distribution and protection of creative works on the internet” (Haute Autorité pour la diffusion des œuvres et la protection des droits sur internet). Following their initial rejection of the three strikes legislation on the 9th April 2009, the French National Assembly were asked by the French government to reconsider the Bill. The French National Assembly voted in favour of the legislation on the 12th May 2009. The French Senate then adopted the law on the 13th May 2009.

Nonetheless, the three strikes legislation has encountered further problems since being passed. On the 17th May 2009, representatives of the French National Assembly challenged the constitutionality of the law. They then submitted it to be examined by the Constitutional Council of France.

Accordingly, on the 10th June 2009 the Constitutional Council of France struck down the portion of HADOPI which would have allowed for the imposition of sanctions against alleged (as opposed to convicted) copyright infringers. The Constitutional Council ruled that the law contravened the 1789 Declaration of the Rights of Man and the Citizen. They found that Internet is a component of freedom of expression, which is protected under Article 10 of the European Convention on Human Rights. They stated that under French law the presumption of innocence triumphs, and that only a judge has the necessary standing to impose sanctions under the law.

Original timetable not met

On the 20th October 2009, the Constitutional Council of France approved a revised version of HADOPI, which contained the provision requiring judicial review before a person’s internet access could be revoked.

There were multiple delays to the adoption of this legislation, which the French government originally presented to the French Senate on the 18th June 2008. The government clearly envisaged a time frame far shorter than the one which was realised, as the bill was declared “a matter of urgency” on the 23rd October 2008.

The first version of the Bill was rejected by the Constitutional Council of France for the reasons cited above, which meant that the legislation had to be revised. HADOPI 2 was then presented to and approved by the Constitutional Council of France on the 20th October 2009, later than intended.

Data Protection Concerns

The data protection and privacy agency CNIL (Commission Nationale de l’Informatique et des Libertés) is a government agency who were concerned about the Three Strikes legislation. They particularly criticised the law on the basis that HADOPI would compile lists of alleged offenders, along with the dates; number of infractions and penalties. The CNIL wanted to ensure that this data collection would safeguard privacy. The organisation was not convinced originally, and in April 2008 they reported that the bill did not do enough to ensure that there was a fair balance between the protection of copyright and respect for privacy. They refused to issue the sign-off letter which the government required before it could put the law into operation.

The CNIL expressed further reservations in November 2008 and May 2009, but the government chose to ignore these and did not consider their recommendations to be legally binding.

Consumer and Civil Liberty Concerns

La Quadrature du Net is the principal organisation opposing the HADOPI legislation. It was set up to protect civil liberties on the web. They have criticised the law on the grounds that it fails adequately to safeguard rights and freedoms and does not sufficiently recognise the “Internet as instrumental to freedom of expression and communication”. They also called the acceptance of HADOPI 2 a “defeat for the rule of law”.

Creation Public Internet, an informal group set up to protect liberty and privacy on the Internet, primarily object on the basis that the government seeks to use HADOPI to control the Internet. This is the stance adopted by the consumer association UFC Que Choisir, who have lobbied against the law. They have described the line of the government as the “Maginot Line.”

The Featured Artists Coalition has criticised HADOPI on the basis that, as well as being a draconian piece of legislation, there is little evidence that this approach will effectively help the industry. They Featured Artists Coalition has 700 members including Annie Lennox, Robbie Williams, Peter Gabriel and Billy Bragg. They have argued that HADOPI can only be seen as a protectionist movement. They say that artists ought to hold the rights to their own work, and that they should be empowered to decide whether to impose a charge or whether their music can be played freely.

Opinions in France

They key proponents of the law are the Head of State, Nicolas Sarkozy and the French government. SACEM are also officially recognised supporters. They are the French professional association responsible for collecting payments of artists’ rights and distributing the rights to the original authors, composers and publishers. They were the body responsible for publishing a petition of 1000 artists who allegedly supported the HADOPI law. This has been an important tool for the law’s supporters, who have repeatedly used it as evidence of industry support.

There has been considerable controversy surrounding this petition. La Quadrature du Net have taken responsibility for scrutinising it critically. A number of artists have publicly declared themselves to be opponents of HADOPI law. The list is extensive, but includes Nicola Sirkis, Gilbert Montagné and Marc Ceronne. Marc Ceronne has allowed his work to be freely accessible on the Internet, demonstrating his commitment to removing barriers. Nonetheless, each of these artists appears on the list of “artists in support of HADOPI law”.

Other names which appear on the list have been found to be entirely fictitious. An apt example of this is Paul Atréides, a fictional character from the Dune universe created by Frank Herbert. Jéremie Zimmermann, the creator of La Quadrature du Net, has remarked that a number of people who appear in the petition are unknown. He found that 90% of the named artists did not feature on eMule, and 60% of the artists named could not even be found on Google.

The list also includes numerous signatures from record labels who do not practise the artistic activities described by the petition. Critics have pointed out that the official stance of the record label need not necessarily reflect the views of the individual artists they represent.

A full list of HADOPI law’s opponents is available here. Key political figures who feature on this list include the European Parliament, the CNIL and Le Conseil d’Etat.

HADOPI now

The letters began being sent out on the 1st October 2010. HADOPI have stated that in the first days an average of 10,000 letters were sent out. However, this number is constantly increasing and HADOPI have projected that they will soon be sending out 150,000 letters each day.

On the 12th October 2010, the French ISP Free became the first to refuse to send out notifications of alleged infringement to its customers. All other broadband providers agreed to send out the first notifications to their customers. The authorities then threatened Free with penalties if they refused to comply with demands to send out these notifications.

Ultimately, Free responded to the threat of a large fine (€1,500 per web user) by backing down and agreeing to send out the first notifications. This happened on the 15th October 2010, following the passing of an emergency decree. Free is keeping open the option of challenging this decree before the European Commission.

The French version of ISPA is called the Association de fournisseurs d’accès et de services internet (AFA).

Standards of evidence

La Quadrature du Net is the main organisation which has raised concerns about the standards of evidence. They have argued that HADOPI threatens the presumption of innocence, since “IP addresses cannot be considered as reliable evidence of copyright infringement”. They have also argued that “HADOPI is technically dead because it entirely relies on identifying users through their IP address that can be altered or high-jacked in many ways”.