A high court called France's new "three strikes" anti-piracy law unconstitutional, but President Sarkozy won't relent in his quest to protect copyrights
Paris intends to move ahead with sections of its 'three strikes' law, stripping out its most controversial aspects following a ruling from France's Constitutional Court that the bill contravenes the holiest of French documents, the Declaration of the Rights of Man and Citizen of 1789.
Those aspects of the bill not struck down by the court "will be promulgated in the coming days," Agence France Presse is reporting, citing an unnamed government official.
The government's aim is to get the new agency envisaged in the bill, the Haute Autorité pour la Diffusion des Œuvres et la Protection des Droits sur Internet (HADOPI), or High Authority on Diffusion of Works of Art and the Protection of the Rights on the Internet ('Hadopi'), up and running as soon as possible while it decides its next move.
The law allows the Hadopi agency to cut off the internet access of users found to be repeatedly downloading copyright content without the permission of the owner. Internet cut-off would be the 'third strike' after downloaders had first been sent an warning email and then a letter in the post.
The agency would still be created, but would only be able to send the warning emails and letters.
Late Thursday, French president Nicolas Sarkozy reportedly demanded the presence of senior officials for emergency discussions on how to push forward with the bill after the court's decision.
According to record industry officials close to the government, Paris is believed to be considering the creation of special copyright courts to deal specifically with the issue, thus getting around the court's ruling.
On Wednesday (10 June), the court ruled that cutting off internet access by the Hadopi agency – without recourse to a court of law – contravened three articles of the Declaration of the Rights of Man, France's fundamental document setting out the rights of French citizens, breaching rights to freedom of expression and the presumption of innocence.
The ruling echoes the arguments the European Parliament put forward in its attempt to outlaw the French bill by tacking on an amendment to a package of legislation liberalising the European telecommunications sector.
On Thursday, EU telecoms ministers meeting in Luxembourg rejected the package as a whole, despite favouring the entirety of legislation apart from the amendment, which means that the law must now move to a ‘conciliation' process between the two sides and mediated by the commission. This will begin in the autumn, but the legislation is still not expected to be passed before February.
Responding to the court's decision, the European Commission's information society spokesman, Martin Selmayr, said: "We have always said we think that intellectual property rights issues can be settled at national level. We take note of the decision of the Constitutional Council. It confirms that the issue can be settled at national level."
"We hope this decision will help to close disputes over the telecoms package," he told reporters in Brussels.
The commission has backed the parliament's perspective throughout the legislative process, but decided not to take legal action against France as it did not consider the French bill illegal under EU law.
"Not everything that I do not like politically is also illegal," said information society commissioner Viviane Reding at the time.
The French Constitutional Court has found differently, eliciting celebrations amongst internet freedom advocates.
"It's a great victory for citizens who have shown that they can act together to protect their liberties. The graduated response is finally buried," said Jeremie Zimmerman of La Quadrature du Net, an internet rights pressure group.
He was not worried that the government was to move ahead with the creation of the Hadopi agency if it did not have the ability to cut off people's internet access.
"It's now just a giant spam machine for the entertainment industry paid for by the taxpayer."