Hadopi, the body that monitors Internet users who are guilty of letting their Internet line allow the downloading of cultural content, is of course the bane of pirates who are P2P enthusiasts. The history of the High Authority has been littered with controversy since its creation in 2009. The latest has sparked: the Constitutional Council, seized by several organizations defending Internet users (La Quadrature du Net, FDN, FFDN and Franciliens.net), censored provisions which allow Hadopi to access documents on Internet users. It is not the big night long awaited by opponents of the Authority, barely half a victory: obviously, the Hadopi will continue its missions.
The “graduated response” is the main mechanism for preventing authority. The holders of copyright or neighbor can seize Hadopi when they note an infringement. The latter can then warn the user free of charge, three times, to put him on notice to secure his line (piracy as such is not penalized). If this is not enough, the file is sent to justice through the rights protection commission. The last activity report for 2018 indicates that almost 60,000 referrals from rightful claimants were processed on average each working day, which had resulted in the transmission of 1,045 files to the judicial authority.
The Constitutional Council answered a priority question of constitutionality (QPC) transmitted on February 12 by the associations. The Wise Persons considered that two paragraphs of article L.331-21 of the intellectual property code were contrary to the Constitution. They allow the administrative authority to obtain ” all documents regardless of the medium, including data stored and processed by electronic communications operators “:” especially »The identity, postal address, e-mail address and telephone contact details of the offending subscriber. The term ” especially Was also censored by the Constitutional Council.
The Elders accuse the legislator of not having limited the field of exercise of the right of communication; the legislator also did not guarantee that the documents which were the subject of it presented a direct link with the breach of the obligation set out in article L.336-3 of the code of the intellectual property. This article justifies the procedure implemented by the rights protection commission.
In addition, this right of communication can also be exercised on all connection data held by ISPs. But here it is: given their nature and the processing to which they may be subject, this data provides information on Internet users questioned “ numerous and precise, particularly intrusive to their privacy ” Without forgetting that these data do not necessarily all have a direct link with the breach of the obligation of article L.336.3.
It is therefore up to the legislator to ” set the rules Concerning the fundamental guarantees of citizens for the exercise of public freedoms. He must also ” ensure reconciliation between the objective of constitutional value for the protection of intellectual property and the exercise of constitutionally guaranteed rights and freedoms ” The Constitutional Council fixes the repeal of these provisions on December 31, 2020, which gives the government ample time to review its copy: the immediate repeal of these provisions being likely to entail manifestly excessive consequences “
Right after the judgment of the Constitutional Council, La Quadrature du Net was too quickly enthusiastic, believing to hold the great victory. ” We apologize for this false joy, there is indeed a censorship of pieces of the device, but we still have some doubts among us about the entanglement of different elements of the device and are going to need a time of retreat to provide a final analysis of this decision “
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