“Graduated response” – Will France disconnect Europe?

Paris, 31 October 2008

On Wednesday 29 and Thursday 30 October, the French “Creation and Internet” law implementing the “graduated response” or “three strikes approach” against filesharers was passed by the French Senate. Under the watchful eye of the lobbyists who campaigned for it and are the sole beneficiaries of this law (including Vivendi, and representatives of the French cinema and music industries¹SACD, SACEM, SNEP, etc.), this expensive project launched personally by President Sarkozy in November 2007, was adopted without any opposition. It was rushed through in a very short time which allowed little opportunity for debate, considering that the liberty of citizens in the digital environment is at stake. The French Senate thus positions itself in total contradiction with European Parliament.

Graduated response : French democracy serving obsolete industrial interests

graduated reponse:
an administrative powerhouse against citizens.²Original picture by Shutterhack CC-by-nc-nd

The law enables the introduction of three-strikes measures³“In a nutshell, under such types of schemes (“graduated response” or “3 strikes approach”), copyright holders would identify alleged copyright infringement by engaging in systematic monitoring of Internet users’ activities. After identifying Internet users alleged to be engaged in copyright violation by collecting their IP addresses, copyright holders would send the IP addresses of those alleged to be engaged in copyright violation to the Internet Service Provider who would warn the subscriber to whom the IP address belongs about his potential engagement in copyright infringement. Being warned by the ISP three times would result in the ISP’s termination of the subscriber’s Internet connection.”, European Data Protection Supervisor (EDPS) comments, 2 September 2008. against file-sharers and Internet users. The French Senate went along with Nicolas Sarkozy’s line, and thus clearly against the European Parliament – a group of elderly statesmen and women, clinging like crusty old fossils to an economic model from our industrial past.

The Senators were legislating on an area which they knew nothing about⁴The sole exception was Bruno Retailleau, representing the Economic Affairs committee, who made a few valiant efforts to intervene, and proposed a fiscal penalty or fine as an alternative to termination of Internet access.. They had to decode, word by word, the arguments laid out for them by the industries who would benefit, and by the Culture Minister, Christine Albanel.

“Inconsistencies, lies, confusion and insults which the creative industries habitually use to blame their clients served as justification for a hurried vote, which ignored the wider public debate which is taking place in France and in Europe.” summarized Jeremie Zimmermann, co-founder of La Quadrature du Net (Squaring the Net).

The vote was carried unanimously in record time, with no problems, surprises or any significant opposition – and only around 20 Senators present. However, the law may not get such an easy ride when it goes to the National Assembly, which is the next stage of its emergency process through the French legislature.

The more we learn about the practical implementation of graduated response, the more it becomes obvious that it inherently cannot function without a large-scale surveillance system on the Internet. The technical processes that the Senators were asked to believe in as workable solutions, are in fact, easily circumvented. They will inevitably mean large-scale sanctions against internet users who have done nothing wrong and do not infringe copyright (false positives) and will not bother much those users who do download copyright-protected material (false negatives). The right to defence for people who are accused under the terms of the law does not exist, because neither their innocence nor their guilt can be conclusively proved⁵The procedures leading to internet access cut are based on IP addresses listings…. The law is therefore already anti-constitutional.

A blind denial of European Parliament’s concerns

The rushed vote of the Senate therefore totally negates the Bono/Cohn-Bendit/Roithova amendment voted in the European Parliament by 88% of its members, on September 24th. Amendment 138 to the Telecoms Package explicitly states that only the judicial authority can impose restrictions on citizens’ fundamental rights and freedoms. The French “graduated response” totally opposes to this fundamental principle, allowing for an administrative body to arbitrarily deprive citizens from their lives and activities in the digital environment.

“Such a blatant lack of respect to the European lawmaking process is badly justified by the minister Albanel with a misleading reasoning, questioning whether access to Internet is a fundamental right. This is totally irrelevant. The fundamental principle at stakes is that every citizen has the right to be judged in a fair trial.” explained Gerald Sédrati-Dinet, analyst for La Quadrature du Net.

Moreover, the minister Albanel seemed confident about a removal by the Council of Europe of amendement 138⁶Albanel declared that, since European Commission has qualified this amendment as a recall to some fundamental legal principles, “this amendment has no legal scope. […] But meanwhile, it has created an interference effect, a potential manipulation effect, and indeed that is why we hope that this amendment will be withdrawn and we have good reasons to believe that it will be, and, for the sake of clarity, this seems important to me.”.. France has already proven that it was using its presidency to pressure the Commission and the Council in that direction.

“This law is a scandal, and only serves those industries who refused to move with the times. The Senate is helping the French government to stamp on European democracy, and deny the fundamental rights of citizens. These maneuvers represent the worst side of politics and are a terrible way to write the law. This is how Member States are deepening the democratic deficit in European Union. We must bring it to a stop, for France and for the rest of Europe” said La Quadrature’s representatives.