At a time where Internet piracy in France is on the rise, French legislators introduced in June 2009 the Creation and Internet Law (“HADOPI 1”), based on a three-strikes approach. Part of the sanctions that could be imposed under the new law would have been the suspension of a user’s Internet access for a year. The French Constitutional Court declared unconstitutional certain provisions of HADOPI 1, including suspending the subscriber’s Internet access for up to one year. The Constitutional Court considered this sanction to be a disproportionate infringement on the freedom of expression and communication, a fundamental right guaranteed by the Constitution, and took issue with the fact that HADOPI 1 placed the burden of proof on the Internet subscribers, who had to demonstrate that they were not responsible for the alleged piracy. This presumption of guilt upon the Internet subscriber was in conflict with the constitutionally guaranteed right under French law of a presumption of innocence. As a result of this decision, new legislation (“HADOPI 2”) was introduced, removing the power to directly impose sanctions on Internet subscribers. According to the new law, the government entity charged with enforcing the law’s main function, based on complaints from copyright holders, is to warn illegal downloaders that their actions violate the law, first by e-mail, then by registered mail. Thereafter, a special judge, uniquely having the power to order a third strike, can suspend a user’s access for three months to a year and issue fines. The HADOPI 2 legislation came into effect on December 29, 2009 with the adoption of the decree pertaining to the organization of the High Authority.
TIP: Copyright holders (such as media companies, artists, etc.), should be aware that if they detect illegal downloads in France, they can complain to the High Authority. For repeat offenders, a special judge can sanction the Internet subscribers.