France’s s92A equivalent declared unconstitutional

Constitutional Council says law violates fundamental rights

The proposed French law to deter online copyright infringers, known by the acronym Hadopi and couched in similar terms to New Zealand’s failed section 92A of the Copyright Act, has been struck down by France’s Constitutional Council.

An InternetNZ spokesman says the organisation is cautious about drawing parallels with the local situation, since French law is very specific about fundamental rights and New Zealand law probably does not apply in exactly the same way.

“We’re having a look at it,” he says.

Hadopi, named after the body that was to have been established to police the law (Haute Autorité pour la Diffusion des Oeuvres et la Protection des droits sur Internet) violates both the constitutional right to freedom of expression and the right to presumption of innocence, the Council has found.

Hadopi proposed instituting a similar provision to s92A, requiring three warnings about persistent offending before disconnection.

The disconnection provision violates a right to freedom of expression guaranteed by the Declaration of the Rights of Man and Citizens, drawn up in the year 1789, the Council has found.

Given “the widespread development of the internet and its importance for participation in democratic life and expression of ideas and opinions,” that guarantee extends to freedom of access to online services, says the Council’s decision.

The right is not absolute, the Council’s finding notes, but “attacks on the exercise of this freedom must be necessary, appropriate and proportionate to the aim pursued,” and the proposed Hadopi statute does not meet this threshold, it says.

The proposed law would have required the designated owner of an ISP account, on disputing accusation of a breach of copyright, to prove that it was not they but a third party who had committed the actual breach.

This attempts to shift the burden of proof onto the accused, contravening the right to presumption of innocence until guilt has been proved, says the Constitutional Council.

Some opponents of New Zealand’s s92A seeing a similar flaw, had branded it the “guilt upon accusation law”.

The NZ government has requested public submissions on possible alternatives to s92A.

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