The repressive mentality that imbues France’s anti-piracy bill, even its new version, could jeopardise access to information when alternative ways exist to protect literary and artistic creation, Reporters Without Borders said today. The bill is being rushed thought parliament with the support of President Sarkozy, who has said he wants to “go all the way” with it.
The new version, dubbed “HADOPI 2” after the acronym of the special agency it would create, the High Authority for the Dissemination of Creative Works and Protection of Rights on the Internet (HADOPI), was passed by the National Assembly on 15 September after the original version, “HADOPI 1,” was thrown out by the Constitutional Council in June.
The Constitutional Council rejected the original version as unconstitutional on the grounds that it would have enabled the authorities to disconnect the Internet access of illegal downloaders without referring to a judge. The new version is meant to satisfy that requirement. A similar version of HADOPI 2 was approved by the Senate in July.
“HADOPI 2 is supposed to give Internet users guarantees but it is just a spruced up version of the bill that was rejected by the Constitutional Council,” Reporters Without Borders said. “A new version submitted just days after the original’s rejection, emergency debates, accelerated procedures – everything is being done to deny legislators the time to properly debate a bill that threatens the right to Internet access, a right recognised as fundamental by the European Parliament.”
The press freedom organisation added: “It is this right that is at stake in the choice of the technological methods used to trace the illegal downloading and identify the person responsible, in the punishment adopted, and in the procedure used for imposing the punishment.”
The bill does not specify the mechanism to be used to search for illegal downloads. If it is an algorhythm, there is every reason to fear it will be poor at distinguishing legal from illegal online activity. A detailed but innocent email exchange with a friend about a movie, for example, could be picked up by the algorhythm. Similarly, how do you prove the innocence of someone whose IP address is hijacked for the purposes of illegal downloading, and no trace is left?
Legislators are supposed to be responsible for protecting basic freedoms. The bill should stipulate the methods used to monitor the Internet so that their scope and their impact on free expression can be evaluated.
The legal procedure chosen for applying the sanctions is also a source of concern. Of all the penal procedures available, the simplest and quickest has been chosen, one in which a single judge issues a court order without the accused being present.
Reporters Without Borders is also alarmed that the alleged offender will not be given details of the illegal download when the disconnection order is issued. This recalls the censorship methods in force prior to the 1881 press freedom law, when the censor did not have to tell offenders why they were being censored.
This violates defence rights. According to the European Court of Human Rights, respect for the rights of the defence in judicial procedures means that all sides get access to all prosecution and trial documents so that they can be equally equipped and the principle of impartiality can be maintained. This partial return to censorship is contrary to constitutional principles.
Furthermore, under HADOPI 2, Internet users will break the law just by visiting an illegal download site, even before they download anything. This also recalls 19th century censorship, which restricted freedom of expression even before it was exercised. Internet users should not be liable to punishment until they have actually committed an illegal download.
Finally, the sanction envisaged by HADOPI 2, loss of Internet access for one year, is clearly disproportionate and poses a major threat to free expression. Under HADOPI 2, anyone who “abuses freedom of communication” by downloading a song or a film protected by copyright could have their own freedom of expression and communication abused by being denied access to online information and the ability to communicate with friends and family by email, Twitter, Facebook, Skype and blogs for one year.
Such sanctions are not applied to other violations of free expression. Has anyone convicted of libel ever been ordered to buy no newspapers, read no newspapers or write no newspaper articles for a year? The law does not normally punish a violation of freedom of expression by violating the offender’s own freedom of expression. Why should it with the Internet?
European Parliament amendment 139/46 declaring Internet access to be a fundamental right was opposed by the French government’s representatives.
The Internet is obviously a revolutionary means of communication but the protection of literary and artistic property rights should not in any way curtail freedom of expression, which is essential for democracy. Reporters Without Borders urges France’s politicians to protect this fundamental right.