France’s Constitutional Council (Conseil Constitutionnel) struck down key provisions of the Creation and Internet Law (Loi favorisant la diffusion et la protection de la création sur internet) yesterday. The law sets up an independent body to find cases of unauthorized Internet content use and to issue warnings to users followed by suspensions of their Internet accounts. The Conseil Constitutionnel found (press release in French) that the independent body can only issue warnings, not suspend accounts.
Specifically, the Conseil found articles 5 and 11 of the law unconstitutional. Article 5 calls for the creation of the independent body, known as HADOPI (Haute Autorité pour la diffusion des oeuvres et la protection des droits sur Internet), a name given to some earlier versions of the legislation. Article 11 provides surveillance rights to the body. The Conseil found that the articles violated constitutional principles of free expression and presumed innocence, and that only a judge can take an action such as suspending a consumer’s Internet account.
This law was passed by French parliament last month after having first failed in April. It would have been in the vanguard of so-called progressive response, a/k/a “three strikes” laws against unauthorized use of content online, which several countries are currently considering. To be effective, the law requires the use of content identification technologies — such as fingerprinting or watermarking — at the network service provider (ISP) level in order to find alleged infringers.
French Culture Minister Christine Albanel, one of the primary forces behind this law (along with French President Nicolas Sarkozy), was scheduled to speak about it just two days ago at the World Copyright Summit in Washington; she had to stay in France and her speech was read by someone else instead. This is a setback for her and for other political conservatives in France, while organizations such as UFC-Que Choisir, the French equivalent of Consumers Union in the US, praised the decision.
Albanel intends to go ahead with plans to set up HADOPI and issue warnings to users, although requests to suspend users’ accounts must be sent to judges.
Regardless of the constitutionality of the law, Albanel’s decision to implement HADOPI should prove to be a very interesting test for content identification technology — how accurate it is, how many false positives it generates, how easy it is to fool or circumvent, and its effects on network efficiency. Better understanding of these factors will lead to better assessments of the value of these technologies to the law as well as the market.