French Court Over-Rules Three Strike Policy

This entry is meant to act as a follow-up to my February article discussing the three-strike policy, but for those who need to refresh their memories, the three-strike policy refers to a propsal supported by various industry groups under which users who continue to share copyrighted content on the web will have thier internet access cut off after two warnings. A three-strikes-you’re-out policy, if you will.

French President Nicolas Sarkozy rushed a relatively extreme law through through the French Parliament which would have seen a creation of a new agency that tracks and automatically suspends internet access to those accused of downloading copyrighted material.

The Constitutional Council of France however stated that there are several problems with this law, some of which I have already touched on in my previous article. Among the most obvious, the Constitutional Council took issue with the fact that the law removes the presumption of innocence. An alleged “pirate” of copyrighted material cannot defend herself before the internet gets cut off. Furthermore, the agency that was created by this law is extra-judicial, and hence some left-wing thinkers and politicians thought that it is wrong for it to be meting out punishment. The Council agreed, stating that having an administrative agency handle quasi-judicial issues is a breach of separation of powers under the French Constitutions.

What is most striking however is the lengths to which the council went in its decision. It declared internet access a human right by stating that “free access to public communication services online” is a part of the Universal Declaration of Human Rights (which sits in the preamble of the French Constitution). I could see this part of the decision raising several problems, most obvious of which is the fact that only 6% of the world population has internet access. It follows then that calling internet a human right is a little premature. There are some other problems with this, but they are outside the scope of this short article.

Finally, as an addendum, the article in the timesonline (UK edition) mentions that several prominent left-wing artists stood up against this decision and for the government’s law that the decision overruled, seemingly forgetting the fact that the law suggested a creation of an agency for monitoring people’s internet activity and meting out punishment without due process. It is amazing how fast some people give up on principles of liberty and justice when the application of these principles start to negatively affect them.

The law will come into force as planned, but without the provision for cutting off internet access. The cases will be forwarded to prosecutors and it will be up to them whether or not to try the people accused of downloading in a court of law.