French copyright and telecommunications watchdogs lose their teeth

French pirates still face fines, but will keep their Internet connections, while telcos can breach regulations with impunity

Two French Internet watchdogs have lost their teeth following a change in the law on Tuesday and a ruling by the Constitutional Court last week.

Those accused by the High Authority for the Distribution of Works and the Protection of Rights on the Internet (Hadopi) of illegally downloading copyright works in France no longer risk losing their Internet access, following a change in the law promulgated Tuesday, although it will now be easier to fine them.

And it will take another change in the law before network operators need fear the French telecommunications regulator, Arcep, which last week lost the power to impose penalties on companies breaking its rules.

France was one of the first countries to introduce a so-called "three strikes" law to discourage the unauthorized downloading of copyright works. Internet subscribers who failed to secure their connection, allowing it to be used for illegal downloads, were warned, first by email, then by registered letter and finally with a convocation to be interviewed by Hadopi. If illegal downloads continued, a court could suspend subscribers' Internet connections and fine them up to €1,500 (US$2,000). Now they face only a fine.

The unpopular Hadopi was created by the previous government, and the change in the law follows the recommendations of a report commissioned by the current government.

Minister of culture Aurélie Filippetti welcomed the decree changing the law. "That's it for Internet suspensions! The time for change is now," she said via her Twitter account, echoing her party's slogan in the 2012 presidential election.

The decree also ordered ISPs to provide the contact details of accused subscribers either through a Web service or on electronic media in machine-readable form. This provision is aimed at ISPs such as Free, which provided the details only in printed form, complicating and slowing the authority's administrative processes, in protest at its failure to cover their own administrative costs. Between October 2010 and June 30, 2012, the authority sent out 1.15 million warning emails, with just 14 subscribers being summoned to interview.

Until another law is changed, there will be no penalties at all for those who cross Arcep, the French telecommunications regulator. In 2011, cable operator Numéricable had challenged the regulator's authority to impose a €5 million fine. In a decision published Friday, the Constitutional Court ruled that Arcep may no longer impose sanctions until its investigative and judicial functions are separated.

The law defining Arcep's functions and powers failed to respect the constitutional principle of impartiality by allowing the president of the regulator to direct both the investigation of breaches of regulation and the imposition of penalties for such breaches, the court ruled. It ordered that the part of the law granting it the power to impose such penalties be immediately struck out. A new law will be required to restore its powers.

It's not the first time poorly drafted laws have rendered French regulatory bodies toothless: Later this month, the French National Assembly is due to discuss changes to the law that will restore the powers of the Conseil Supérieur de l'Audiovisuel, the country's broadcasting regulator.

Peter Sayer covers open source software, European intellectual property legislation and general technology breaking news for IDG News Service. Send comments and news tips to Peter at peter_sayer@idg.com.

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