Constitutional Council strikes down key portion of HADOPI law

France's Constitutional Council has thrown out the controversial HADOPI Création et Internet law, even as Minister of Cultural Affairs and Communication Christine Albanel spoke in Washington on Wednesday claiming that anyone who opposed the aggressive new access-control law was "in the wrong century."

The Constitutional Council reviewed HADOPI at the request of France's Socialist Party, which lobbied hard against the law. Had the Council not agreed to review HADOPI, a French representative to the European Parliament had already committed to taking the matter before the EU, which in turn had already spoken against the legislation. for now, though, it appears that France itself may take responsibility for rethinking the law.

The preamble to France's constitution states that freedom of communication and expression is a basic human right. The Council, France's highest legal authority, ruled that the language covers free access to public communications services online, and thus only a judge should be allowed the power to bar an individual from accessing the Internet.

HADOPI as it currently stands is a three-strikes law, whereby a person accused of downloading illegally could have his or her Internet access cut off for up to a year on the say-so of a copyright holder (say-so, not proof; copyright holders lobbying the government claimed that proof would be too difficult to establish). The barred Netizen would be required to keep paying for Internet access she or he wasn't able to use.

Ms. Albanel, speaking through a translator at the World Copyright Summit in DC, attempted to make her case for HADOPI. "No constitution or jurisdiction in the world claims that Internet access is a fundamental freedom," Albanel said to the gathering. "No right is unconditional. It must be reconciled with other forms of freedom and cannot be invoked to violate the law."

The Council of Europe, like the French Constitutional Council, begs to differ. Stating that "fundamental rights and Council of Europe standards and values apply to online information and communication services as much as they do to the offline world," the Council late last month affirmed that "universal access to the internet should be developed as part of member states' provision of public services."

They further cast the stink-eye on monitoring of online activity, net filtering, the surveillance of journalists, and the wholesale retention of personal data. Such government monitoring is the basic outline of LOPPSI, "homeland security" legislation on tap from the Sarkozy government. LOPPSI legalizes government use of spyware (cookies, trojans, keyloggers, and the like) by law enforcement with sparse judicial review, and provides for a program called "Pericles" that would acquire, correlate and track a vast amount of data on individual citizens.

The Council stated that, as far as the "terrorism" defense for overly restrictive legislation goes, it means to "review our national legislation and/or practice on a regular basis to ensure that any impact of anti-terrorism measures on the right to freedom of expression and information is consistent with Council of Europe standards, with a particular emphasis on the case law of the European Court of Human Rights." In other words, once the Sarkozy government is done reworking HADOPI, the battle lines are already drawn for the far more sweeping LOPPSI.