Third strike?

The French ‘3 strikes and you’re out’ approach to Peer to Peer regulation is back in the news again. After the previous version was ruled unconstitutional by the French Constitutional Court the law passed back for further discussion and amendment.

Now, the amended version of the ‘Hadopi’ law has been passed by a vote in the French National Assembly - voting was 285 for, 225 against. However, that is not the end of the process. Although the law has now been cleared in the National Assemby it must still be approved by a commission drawn from both senators and deputies. The majority UMP voted in favour of the law which has the strong backing of President Sarkozy but the opposition Socialist Party has already indicated that it will make a further referral to the Constitutional Court.

The major problem, and the basis for referral, is the provision for withdrawal of Internet access on the order of a ‘‘Haut Autorité’ rather than by order of a judge in court. Opponents argue that a person charged with file sharing and subject to a third notice should be able to defend themselves in court and to challenge evidence presented by rights owners.

This is important as Internet access is now becoming regarded as a human rights issue. The European Parliament is investigating whether or not a withdrawal of Internet access is a breach of human rights - if that is upheld and, particularly, by the ECHR, then proposals such as the French ‘Hadopi’ law willl be ruled out. But the issue is much more fundamental than human rights - if a person is accused of carrying out an activity with a potential penalty then they must be given the right to defend their position and to challenge any evidence brought against them. That is a fundamental position for the courts and it should not (must not) be diluted through the creation of specialist agencies that may not provide the same level of protection for the accused.

Now, the French position is being carefully watched by others. Perhaps no more so than here in the UK where the Secretary of State for Business (Lord Mandelson) has made it clear that he favours a ‘three strikes’ and you’re out approach. Now this was initially rejected by the Digital Britain report and in previous Ministerial pronouncements but it is now back on the agenda. Sad to see that the re-launch of ‘3 strikes’ was as part of an amendment to documents under consultation - there really should be no option of moving the goalposts during consultation.

The outcome of the commission discussion and of the next referral to the Constitutional Court will be interesting and key to future progress of the ‘Hadopi’ law. 3 strikes may have risen again but may yet be pushed back down.