October 23, 2009, 9:10 AM — France's Constitutional Council has validated the so-called "three strikes" law, clearing the way for an accelerated judicial process that will cut off the access of Internet users accused three times of downloading copyright content without authorization.
A group of opposition deputies had challenged the law, passed by the National Assembly last month, on constitutional grounds, but the Council found all but one clause of the law constitutional.
However, it threw out a clause that gave copyright holders the possibility to use the fast-track court hearings to claim damages for copyright infringement. With that clause ruled as unconstitutional, copyright holders seeking damages will have to bring a separate legal action, with all the costs that that entails.
Under the new law, Internet users accused of copyright infringement will receive two warnings before landing in court. Once there, they will have no opportunity to argue their case or be tried by a jury: a single judge will decide, on the basis of the case file, whether to order the suspension of their Internet access.
Once the judge has ruled, there'll be no getting around it: Internet service providers (ISPs) face a €5,000 (US$) fine if they fail to enforce a suspension order, while users can be fined up to €3,750 if they sign up for service with a different ISP while subject to a suspension order.
Internet subscribers will also be held liable if, through negligence, they allow their Internet connection to be used to illegally download copyright works. That would be the case if an intruder used an inadequately secured Wi-Fi connection, or if their computer were attacked by malware and taken over by someone else. One legal defense against such eventualities will be to install a government-approved filtering application.
This is the second time that the law has been examined by the Constitutional Council, France's highest legal authority. In June, an earlier version was declared unconstitutional because it allowed an administrative authority, and not a judge, to suspend Internet access.
The law has angered online rights groups such as Odebi, a broadband user group, and April, an organization which promotes the use of free software and open standards.
April, in particular, criticized the law for mandating the use of the spy filters. "April remains firmly opposed to any intrusion into citizens' computers," said spokesman Frédéric Couchet.