A controversial new law has been passed to tackle breaches of artistic copyright on the Internet in France.
The law provides for a ‘Three Strikes’ rule that would result in the suspension of the Internet connection of those found to be persistently undertaking illegal downloading of music and films.
France is, as yet, the only country in the world to adopt such a measure.
In order to police the new law a new agency is being created, called 'Hadopi' (Haute autorité pour la diffusion des oeuvres et la protection des droits sur internet), which will have the power to disconnect illegal downloaders from the Internet.
No new surveillance technology is being introduced to monitor the downloading of illegal files. This is already available through the Internet Service Providers (ISPs). The problem has been that, until now, there has been no regulatory structure in place.
Under the law ISPs will be required to provide details of those found illegally downloading files to the new regulatory authority. An Internet user who is found to be illegally downloading films or music will receive an e mail warning from Hadopi that the practice must cease.
The e mail will state the date and the time of the offence, although not the offending content. This information can subsequently be obtained from the regulatory agency.
If, within six months, the offence is repeated, a user will receive a final warning, sent by recorded delivery letter.
In the event of a third offence, then they will have their Internet connection suspended, for a period of between one month and one year.
Despite having no internet connection, an illegal downloader will still be required to pay the monthly connection fee in the normal manner. This requirement was included at the express request of the ISPs, who did not consider they should be penalised financially by the new law.
Nevertheless, it remains open to anyone whose Internet connection has been removed under the law to terminate their contract with their ISP in accordance with the terms of their contract.
A central register of blacklisted names will be maintained by the regulatory agency to which ISPs will be obliged to refer before they can take on a new customer.
It is anticipated that the first round of e mail warnings will be going out in the autumn, with the first Internet suspensions likely in early 2010. Many tens of thousands of warnings are likely to be sent out, and it remains to be seen just how many users then heed them.
There is a right of appeal to a court of law against being cut off, which must be made within 30 days of receiving the letter of notification. During the process of appeal the user will be permitted to retain their connection.
It is anticipated that one ground for appeal likely to be used by offenders is that they were not aware they were downloading an illegal file. Indeed, there is a great deal of concern that hackers will hijack Internet Protocol (IP) addresses and provide false information concerning users!
It remains to be seen whether judges will accept that an address has been hijacked, but to help counter the risk of unintentional illegal downloading, new security software is to be made available by ISPs. The law provides that any Internet user who has installed such software will be exempt from sanction.
But is it Legal, and Will it Work?
Whilst the music and film industry in France have given a general welcome to the new law, it has been strongly opposed by civil liberties and consumer groups. Opponents of the law consider that it is too intrusive and draconian, and that more innovative approaches should be taken to the problem, eg a licence fee.
The French socialist party is contesting the law in the French constitution court, who have yet to render their decision.
The law also appears to be in breach of an EU draft law on telecoms, although the EU Council of Ministers has yet to give its approval to the measure. The main objection of the EU Parliament is that they consider the sanction disproportionate in relation to the offence.
There are also more practical problems.
Thus, those who obtain telephone and television services over the Internet will be allowed to retain these services if their Internet connection is suspended, but it is by no means clear that this will be technically possible.
Others are concerned that the law is going to be unenforceable against illegal downloading being undertaken by someone within a company or public organisation. In such cases, the law provides that the organisation itself will be obliged to act, failing which it will face fines.
There are also methods that can be used to disguise an IP address, and it is likely there will be a scramble from illegal downloaders not already familiar with it, to find out just how it is done!
The French Constitutional Court has determined that the centrepiece of this new law is contrary to the French Constitution, and therefore unlawful. The Court took the view that only a judge court could suspend an internet connection and that this would only be possible where there had been ‘substantial’ illegal downloading. June 09