Why the French 3-Strikes Law Might Be Unconstitutional

The French Government just finished writing a bill that would aim at controlling internet traffic in order to punish web users guilty of copyright infringement. The law, highly anticipated by right holders, would create a new public body in charge of sanctioning people guilty of illegal downloading. It would first warn them by sending emails and letters, and could eventually order internet service providers to suspend their internet access. The Council of State, a court of senior jurists that advises the government on legislative bills and also acts as France’s supreme court for administrative law, has reportedly modified the bill quite significantly. It sought to respond to a number of judicial requirements, such as the constitutional principle of individualization of penalties (see previous post).

However, it is also likely that the Constitutional Council could declare the upcoming law unconstitutional. One of the many reasons it might do so has to do with the statute of this new public body, called HADOPI for “High Authority for the Distribution of Works and the Protection of Rights on the Internet”. This new agency would be an Independent Administrative Authority (IAA), a qualification similar to the British Non-Departmental Public Bodies.
Such qualification will normally have significant implications regarding its competencies. Indeed, the Constitutional Council’s jurisprudence has slowly built a coherent judicial framework for IAAs. Most notably, in its decision on January 17th 1989 concerning the CSA, another IAA in charge of regulating the audiovisual sector, the Council imposed three conditions to the constitutional validity of the sanctioning power of IAAs:

1. that these IAAs are in actual fact independent from the administration;
2. that their sanctioning power are restricted by “appropriate safeguards to ensure the rights and freedoms that are constitutionally guaranteed” (idea of a fair trial);
3. that the sanctions they adopt do not constitute a privation of liberty.

If the Council of State seems to have paid enough attention to the second point, it is very possible that the Constitutional Council will declare the three strikes law to be contrary to the Constitution on the ground of the third one. According to the 66th article of the French Constitution, the judiciary authority is the “guardian of individual liberty” and is the only one constitutionally authorized to pronounce sentences infringing on fundamental liberties. Therefore, an administrative authority, even independent, cannot be given the power to order such measures. This is precisely what the 1989 ruling reaffirmed. Yet, the suspension of internet access is clearly a privation of communication freedom and it is consequently dubious that the Hadopi is even lawful.

I asked my public law professor about it and she thinks that it is a constitutional dead end too. What I can’t really figure out is why the Government would engage in this fight knowing it too…
Wait and see.

Pictures by Jastrow, retrieved on Wikimedia Commons.

The European Parliament to Advocate Media Pluralism and Blogging Transparency

This in-depth article by EUobserver journalist Leigh Phillips comments on a draft report of the European Parliament’s Culture Committee about concentration and media pluralism in the EU. It was adopted by the Committee on June 3rd and the report will now be submitted to the plenary assembly within the next few weeks. As stated by Phillips,

its main recommendation is for the European Commission and EU member states to apply competition law to the media to ensure media pluralism.

Its other major recommendations include the creation of media pluralism ombudspersons in the member states; the development of European core curriculum for media literacy; for the commission to ensure that regulations governing state aid not be used to undermine public service media.

The report also tackles the very latest new media developments – the ever-expanding blogosphere and increasing use by news organisations of user-generated content such as mobile video. In order that existing profession producers of content not be undersold by freely delivered but poorly produced content, the report recommends the payment of fees for use-generated content. In this way, producers or publishers would choose which content to purchase – professional or amateur – not based on which was cheapest, but which was of the highest quality.

Ms Mikko (the rapporteur) also worries that who the authors of weblogs are is not always made clear to readers, and that there are regular concerns regarding the impartiality and reliability of blogs. What is the legal situation of bloggers regarding source protection? Should they adhere to journalist ethical codes? Where is liability assiged in the event of lawsuits?

As a result, the MEP also calls for a clarification of the legal status of weblog authors and wants to see a disclosure of interests and the voluntary labelling of weblogs. Interestingly, the UK’s National Union of Journalists new media section – who recently signed up the world’s first unionised professional blogger – is currently drafting a voluntary code of conduct for bloggers that can be applied as a widget on any blog, similar to a ‘fair trade’ sticker on a bunch of bananas or packet of coffee. (Emphasis added)

Providing a status to bloggers represents a novel approach and could spark off much controversy, depending on what exactly is proposed. So far the report argues that such labeling would improve transparency by disclosing the “professional and financial responsibilities and interests of (blogs’) authors and publishers“. In spite of this regulatory stance, it is worth noting the report clearly recognizes that blogs now constitute an essential contribution to media pluralism.

In the meantime, concerns over media independence are also growing in France (see previous post). Currently in the middle of a debate on constitutional reform, the French Parliament is considering whether or not there should be a specific article in the Constitution guaranteeing media pluralism. Yet, the First article already stipulates that France is a democratic Republic. I personally think these two words suffice to give lawmakers the power to do whatever is necessary in order to maintain a diverse, healthy media landscape. They should let the Constitution determine ideals and use the Law to draw necessary principles from it.

Nonetheless, a quarter century after media deregulation, these political moves are additional signs that the media are entering a new era.

Photo on Flickr by MatteoBertini under Creative Commons License.

Sweden and the Information Society: A Step Backward

Sweden is considered as a leader of the information society. The country boasts one of the best broadband networks in the world, 80% of households have an internet connection and it is heading towards progressive policies on file-sharing (thanks to rightholders in particular). In addition, Sweden has taken the transparency lead in the European Union as it has successfully convinced its partners to implement principles of government openness in the functioning of EU institutions since it entered the EU in 1995.

A law passed on Wednesday, however, appears as a huge setback for both the information society and political transparency. The Swedish Parliament, the Riksdag, narrowly passed a surveillance law that will authorize a governmental agency to process and analyze internet and phone communications coming in and out of the country as soon as January 1st, 2009.

Although the Government claims the law does not threaten Swedish citizen’s rights, what about the millions of EU citizens, and other foreigners for that matter, who pass communications to Sweden? The government body, subordinate to the Ministry of Defence, will spy on them and possibly their Swedish correspondents with no respect for their individual liberties. Even the former head of the Swedish intelligence agency said he was shocked by the lack individual rights protection.

Yet, the European Convention for the Protection of Human Rights and Fundamental Freedoms protects the respect to one’s privacy along with the freedom of communication and covers all EU member states, Sweden included. In addition, this law obviously undermines the EU’s commitment to promote individual freedoms across its interior borders as well as its painful attempt to become a true political community. Instead of keeping EU citizens under surveillance, Sweden should treat them the same way it treats Swedish citizens, particularly when it comes to fundamental freedoms.
Now the question is: will the EU leaders, especially the European Parliament, remind the Swedish government of the principles underlying its EU membership?

Photo on Flickr by xjyxjy under Creative Commons License.