HADOPI 2 validated, a defeat for the rule of Law

Paris, October 24th, 2009. On Thursday, the Constitutional Council gave its decision¹Read the decision: Voir la décision sur le site du Conseil constitutionnel : http://www.conseil-constitutionnel.fr/conseil-constitutionnel/root/bank_mm/decisions/2009590dc/2009590dc.pdf on HADOPI 2, the legislative patch proposed by the French government in order to cricumvent the Council’s refusal of the core provisions of HADOPI 1. La Quadrature du Net deplores a weak decision that does not correspond to the progressive protection granted in the decision on HADOPI 1, which recognized the Internet as instrumental to the freedom of expression and communication. It is a sad news for democracy and the rule of law, and the beginning of the failure of this new attempt to enforce a copyright regime that is fundamentally unadapted to the digital age.

In this decision, the political parameters have clearly prevailed and overshadowed the protections of citizens’ freedom as well as a humanist vision for the future of our societies. In its decision of June 10th, the Constitutional Council confirmed that the Internet is now an instrumental mean for exerting the freedom of expression and communications. With this new decision however, the 10 justices have backed down compared to the strong position they took on HADOPI 1.

Thursday’s decision leaves the HADOPI 2 law intact and is therefore difficult to understand, given the law’s numerous infringements on fundamental rights and freedoms, among which the right to due process and the presumption of innocence. It is worrying that the Constitutional Council – the guardian of the most essential principles of the rule of Law in France – has been deceived into agreeing to this technically and legally absurd text. The protection of citizens against baseless charges and arbitrary sanctions is now entirely in the hands of the judges who will have to apply the law. Although the latter has officially passed the constitutional test, it will assuredly turn out to be a technical, cultural and political failure.

“It is a sad day for liberties in France. The fact that a text such as HADOPI 2 can be validated is very revealing of the state of our institutions. The government will now have to face the consequences of the unavoidable failure of the law, once it is implemented. What is ahead now is a big price tag for taxpayers, unfair penalties, and resistance to this repressive measures. French citizens can now rent IP addresses in countries that do better at safeguarding rights and freedoms”, sums up Jérémie Zimmermann, spokesperson for La Quadrature du Net.