[edri.org] Nicolas Sarkozy and the French Government want to go on with the new three
strikes draft law (called also Hadopi 2) which was presented to the Council
of Ministers on 24 June 2009.
The emergency procedure has been initiated and therefore the two chambers
will have only one reading for the text. The new text will be first
presented to the Senate on 8 and 9 July to be further on examined by the
deputies, presumably starting with 22 July.
The draft law including now five articles stipulates, besides the
disconnection of the alleged infringer which has to be decided by the court,
fines that can amount to 1 500 euros or 3 000 euros in case of repeated
offences.
The new version has reintroduced an extension previously rejected by the
deputies in the first text: a user can be condemned not only for "piracy"
through an online public communication service, but also for "piracy" by any
electronic communication means. This means that the judges will be able to
sanction "piracy" that was performed also by instant messaging services or
e-mails.
And, in order to soften the censure imposed by the Constitutional Council,
the new text introduces a legal instrument that would allow the justice
system to use simplified procedures in applying sanctions "against the
authors of illegal downloading. A fast and efficient treatment of the cases
will thus be ensured by means of penal ordinances".
So, the court can decide, by penal ordinance, to condemn an alleged
infringer to pay a fine in his absence. The text thus includes "Internet
piracy" on the same list of infringements with the use of hallucinogenic
drugs or violations of the traffic code.
The infringement is established by Hadopi authority officers who then notify
the police. Their reports are considered "truthful until proven otherwise"
which actually implies there is no presumption of innocence. Unfortunately,
the Constitutional Court seems to have left an open door for the culpability
presumption by saying that the legislator can exceptionally establish such
presumptions under certain conditions such as the respect of the defense
right.
The file is then sent to the public ministry which can choose the simplified
procedure and sends it to the president of the court who establishes without
prior debate a penal ordinance applying or not a fine. The subject of the
fine is never heard. The procedure gives the court president the possibility
to ask for a contradictory debate in which case the file is sent back to the
public ministry.
The penal ordinance is given by a sole judge, which is the president of the
court and includes the names and coordinates of the alleged infringer, the
date and place of the alleged infringement and the sanctions. The sanctions
are then carried out by the public ministry within a period of 10 days.
The user can make an appeal within 45 days and present himself in front
of a magistrate for a new judgment but the risk is that, in case the user is
found guilty, the sanction can be aggravated up to a maximum of 3 years in
prison and 300 000 euros of fine.
Actually, the new text introduces the three-strikes in an even harder
version: warning, fine and then disconnection. The only improvement is that
the disconnection can be decided only by the court and that is also shadowed
by the simplified procedure allowing for the penal ordinance.
Hadopi 2 starting on 8 July in the Senate (only in French, 26.06.2009)
http://www.numerama.com/magazine/13283-Hadopi-2-des-le-8-juillet-au-Se…
Hadopi 2: the surveillance of e-mails is back (only in French, 25.06.2009)
http://www.numerama.com/magazine/13273-Hadopi-2-la-surveillance-des-e-…
Fine for illegal downloading, how does it work ? (only in French,
25.06.2009)
http://www.01net.com/editorial/503828/amende-pour-telechargement-illeg…
Hadopi: and now, the fines… (MAJ) (only in French, 24.06.2009)
http://www.01net.com/editorial/503668/hadopi-et-maintenant-les-amendes…(maj)
Draft law on the legal protection of literary and artistic copyright on the
Internet (only in French, 29.06.2009)
http://www.legifrance.gouv.fr/html/actualite/actualite_legislative/pl_…
The French Constitutional Council censures the 3 strikes law (17.06.2009)
http://www.edri.org/edri-gram/number7.12/3-strikes-censured-council-co…
