Reform but no abolition of Internet suspension regime under new French Hadopi law

This week, France made an impressive U-turn on the way it handles P2P piracy on the internet. In a decree of 8 July 2013, the French government overturned the provision in the Intellectual Property Code that allowed a court to suspend one's internet access in case of illegal downloading of copyrighted works (more precisely, in the case of "négligence caractérisée" - see below). Under the new law, those accused by the High Authority for the Distribution of Works and the Protection of Rights on the Internet (Hadopi) of illegal downloading, will no longer risk losing their internet access. The new system shifts the focus to imposing fines rather than disconnecting people from the internet.

Old Hadopi law: three strikes and you're out

The old Hadopi law was famous for its "three strikes" graduated response procedure, following which internet users who did not secure their internet connection and allowed it to be used for illegal downloads (this was labeled as "négligence caractérisée") could find their internet access suspended by court order for a period of up to 1 month (additionally, fines could also be imposed). This court order was preceded by a "three strikes" regime, under which the internet users were first warned by email, then by registered letter, and finally with a convocation to be interviewed by Hadopi.  In case illegal downloaders did not react on the warnings and continued to download pirated material, the old Hadopi law allowed a court to disconnect them temporarily from the internet.

New Hadopi law: reform, but no abolition of internet suspension regime

Under the new system, internet users suspected of copyright infringement for illegal downloading can still be fined if they do not act on the written warnings. The fees are relatively low (60 EUR), but can increase in case of multiple infringements (up to 1500 EUR). This is without any doubt an improvement compared to the old version of the law, and the current French government did good to reform the internet suspension system that was introduced under the presidency of Mr Sarkozy. However, the new French act does not abolish the possibility of internet suspensions altogether. The declarations of the French minister for cultural affairs Mrs Filippetti in that sense should be taken with a grain of salt. In fact, the current Article L335-7 of the Code of Intellectual Property still provides the possibility to suspend the internet connection of those who illegaly upload copyright protected works on the internet (for a total duration of up to 1 year, plus fines). 

The reform of the Hadopi regime basically means that French officials involved in anti-piracy policy will now focus on sites that gain commercial profit from pirated material rather than beat their sticks on individual users. This turn in policy can only be welcomed. In June 2009, the French Constitutional Council already declared that access to the internet is to be considered a basic human right, and various other countries have already taken legal initiatives to guarantee a basic access to the internet for all citizens (such as is the case in Finland). In that sense, it is a positive evolution that the French government suspended the internet access suspension regime for "négligence caractérisée" (i.e., for illegal downloading). The French minister of cultural affairs also announced that she wants to cut the powers of the Hadopi authority to transfer sanctioning powers to the telecom regulator CSA (i.e., CSA instead of Hadopi would become authorised to impose administrative fees). It remains to be seen how the French government will continue to reform the way it handles peer to peer piracy on the internet. No doubt, to be continued...

For more information regarding teh above, do not hesitate to contact me. 

Author: Bart Van Besien

Finnian & Columba

Belgium

bart@finnian.be