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INTERNET ACCESS, A NEW CONSTITUTIONAL RIGHT?

By Sébastien VANNEROT
Posted Jun. 29, 2009


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The bill related to the broadcast and protection of creation on Internet was adopted in a French Ministers’ Council on 18 June 2008. Subsequently, and according to the process of law-making, the bill was successively adopted in first reading by the Senate on 30 October 2008 and by the National Assembly on 2 April 2009. The bill established by the joint commission (composed of representatives of both assemblies, Senate and National Assembly, to find a compromise on a bill when they disagree) was then rejected by the National Assembly on 9th April 2009 following political manoeuvres by the opposition. After a new reading and a new vote, positive this time, the National Assembly and the Senate adopted this bill in the same terms respectively on 12 May and 13 May 2009. The bill was then referred to the Constitutional Council by 184 members of the National Assembly.

In order to render this rule coercive, this bill entrusts to an independent administrative authority, the HADOPI, the task to decide the suspension, as penalty, of the internet access of the people who may have committed any infringement in the frame of their internet use.

Contrary to the United States where the federal Supreme Court can declare unconstitutional the laws after their entry into force, the role of the French Constitutional Council is to declare, on request of members of the Parliament and/or of the government, the laws constitutional or unconstitutional before their entry into force. From a domestic point of view, there is no possible further constitutional claim after this step, except in a judicial context where the rules and regulations considered as higher than the law will apply and allow a contradiction between case law and the normally applicable law, as voted by the Parliament. For example, European legislation or international treaties prevail on the French Law from case law Nicolo (1989).

This type of process is classic in the French law-making process; however a particular point of this decision should be noted.

With the purpose to enhance the protection of author rights on Internet, this bill has instituted a (new) general obligation to control internet usage from its own access whose responsibility is carried by the internet access subscriber. So far, this looks like a good idea.

However, in order to render this rule coercive and, therefore, to reduce or stop the too numerous infringements of intellectual property rights on the web, this bill entrusts to an independent administrative authority, the HADOPI, the task to decide the suspension, as penalty, of the internet access of the people who may have committed any infringement in the frame of their internet use. This suspension would be applicable only after one or more law reminders.

This is where everything becomes complicated and why the bill was the subject of claims by a large part of the opposition as well as from the public opinion.

In its decision of 10th June 2009, the Constitutional Council decided that the right of each individual to connect to Internet is an element of the freedom of communication and expression as well as of the commerce and industry. Beyond these usages, Internet is, first of all, a communication tool; the Constitutional Council therefore placed the debate about HADOPI bill on the ground of the exercise of freedom.

In its decision of 10th June 2009, the Constitutional Council decided that the right of each individual to connect to Internet is an element of the freedom of communication and expression as well as of the commerce and industry

The case law of the Constitutional Council about the public liberties as well as communication and expression freedom is rich in decisions. However, the Council has rarely had the opportunity to examine a question about the exercise of communication freedom in its “active part” (i.e. Citizens are information's issuers. The majority of its case law in this field is devoted to the "passive part" (i.e. Citizens are information's recipients).

Taking into account the new role newly by internet in news access and, more generally, its place in the information chain, the Constitutional Council has legitimately considered that internet cannot be excluded from the scope of the constitutional protection applicable to the freedom of communication and expression. In this context, internet has been considered as the contemporaneous outcome of the “right to speak, write and print freely” as defined by the article 11 of the (French) Human Rights Declaration of 1789.

In its decision, the Constitutional Council pointed out that internet access enters into the constitutional field of freedom of communication and expression. However, the Constitutional Council has also made clear that this right (to expression and communication) induces a freedom to connect to Internet but not that, as the applicants have argued, the Internet access is a "fundamental right".

At this stage, any restriction on internet access not pronounced by a tribunal shall be considered as a restriction to the liberties guaranteed by the article 11 of the Human Rights Declaration of 1789.

Obviously, the bill has been partially censured on the above basis.

With this decision, the Constitutional Council is in line with the position of the majority of the European Parliament Members who adopted, on 6th May 2009, an amendment to the “Telecom package” which imposes the pronouncement of a judicial sentence previously to any internet suspension.

So, whether the law related to the broadcast and protection of the creation on Internet entered into force without censure of the Constitutional Council, the European legislation would have prevailed on this one… So return to the square one but with a new element: we must now deal now with the web...

 
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INTERNET ACCESS, A NEW CONSTITUTIONAL RIGHT?



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