pageok
pageok
pageok
France, the EU, and Internet Speech:

The answer to the question that I know you've all been asking yourselves (i.e., "Where's David Post, and why hasn't he posted anything of late to the VC? — even just to pitch his book!) is: I'm teaching this summer at our Rome program, and between adjusting to a new (and very, very complicated city) and trying to see all of the extraordinary things there are to see in Rome, and teaching for an hour or so every day, I've been pretty harried. [You can tell I've been too busy, because I didn't even have a chance to blog about Barcelona's extraordinary 2-0 victory over Manchester United in the Champions League final, which was held here in Rome the day I arrived, and which I watched (a) in the piazza in front of the Pantheon, at a TV screen set out by one of the restaurants] (first half) and (b) at a back table in the kitchen of a little trattoria where my wife and friends were having dinner])

But it's an interesting time to be teaching a course (as I am here) on "Intellectual Property and the Internet." As you've probably heard, France has been taking a particularly aggressive stance in regard to the question of Internet "piracy," both domestically and in the EU parliament; it has passed a harsh law requiring ISP monitoring of Internet use designed to ferret out users of P2P file-sharing systems, including a mandatory cutoff of all Internet service for anyone found (after an administrative, but not a judicial, hearing) to have been sharing files unlawfully on three separate occasions. [Stories here, here, and here about the French law] [Stephen Rudman sent me a report that the French military have been involved in shutting down Bittorrent servers, though I can't vouch for their accuracy]. The French introduced a similar measure this Spring in the European parliament, where it was voted down - indeed, the parliament passed a measure prohibiting EU governments from terminating a user's Internet access without a court order, declaring that "Internet access is a fundamental right such as the freedom of expression and the freedom to access information."

It sets up a nice constitutional conflict between the EU and one of its member States — and this past week, into the mix comes the French Constitutional Court, which struck down all sanctions against individuals in the French law, on the grounds that they presumed guilt, which could only be established by judicial process. Patrick Fitzgerald very helpfully sent along the following report:

In addition, they included a powerfully-worded statement on free speech which suggested that mandatory disconnection might be disproportionate per se, whether or not imposed by a court. Citing the Declaration of the Rights of Man of 1789(!), they argued that free speech was a fundamental right and that its continued evolution meant that it now included, practically, a right to access the internet.

Whilst it is tricky to extract pithy quotes from French Constitutional decisions, this is probably the most interesting:

Considérant qu'aux termes de l'article 11 de la Déclaration des droits de l'homme et du citoyen de 1789 : " La libre communication des pensées et des opinions est un des droits les plus précieux de l'homme : tout citoyen peut donc parler, écrire, imprimer librement, sauf à répondre de l'abus de cette liberté dans les cas déterminés par la loi " ; qu'en l'état actuel des moyens de communication et eu égard au développement généralisé des services de communication au public en ligne ainsi qu'à l'importance prise par ces services pour la participation à la vie démocratique et l'expression des idées et des opinions, ce droit implique la liberté d'accéder à ces services ;

The 1789 Declaration of the Rights of Man and Citizen provides that 'the free communication of thoughts and opinions is one of the most precious human rights: accordingly any citizen can speak, write and print freely, except in cases of legally defined abuse.' In light of contemporary means of communication, and particularly the generalised usage of internet to communicate, as well as the role the internet has come to play in democratic participation and the expression of ideas and opinions, this right [of free speech] implies the freedom to access the internet.

They continue to juxtapose this against the property rights of copyright holders, but find that the right to free speech is so fundamental that it can only be infringed by means which are 'necessary, adapted and proportionate to the end sought'. The 'ratio' (so to speak) is eu égard à la nature de la liberté garantie par l'article 11 de la Déclaration de 1789, le législateur ne pouvait, quelles que soient les garanties encadrant le prononcé des sanctions, confier de tels pouvoirs à une autorité administrative dans le but de protéger les droits des titulaires du droit d'auteur et de droits voisins ;

With respect to the nature of the liberty [of expression], the legislature cannot, under any safeguards or process, confer such powers [ie to cut domestic internet access] on an administrative authority for the purpose of protecting copyrights.

They attached particular importance to the fact that the person's home access could (indeed would) be affected.

[Some useful links are here: a French free internet campaign group; Le Figaro (in French); Ars Technica; the actual decision (obviously in French)

It's going to mean I may have to rewrite the last chapter of my book, where I tried to draw a distinction between US and French views of free speech and copyright law — suggesting that US law recognizes th freedom of speech as a "natural right" and copyright as a lesser "social right," while the French take the opposite view. Things are always, of course, more complicated than simple formulae like that, and this is a good example - this is as ringing an endorsement of Internet speech as one might have gotten from Hugo Black or Thomas Jefferson.

Update: What's particularly bizarre about my mistaking Chelsea for Man. United in my original posting [and thanks to the commenters who pointed out the egregious error on my part) is this: two nights after the final my wife and I are eating dinner at a nice restaurant down near the Campidoglio. Near the end, a couple, obviously American, sits down next to us, with their 4 kids, ages around 10,8,6, and 4 ... they're having ALL SORTS of trouble ordering; they speak no italian, the kids are whiny and changing their minds all the time, the dad looks like he's in a foul mood ... and the mom's trying to explain to the waiter that some of the kids are vegetarians ... it was actually kind of hilarious italian street theater; the waiter gave up at one point and just burst out laughing and said he'd come back ... Anyway, we got chatting a bit (we gave them some info on the italian words that meant meat, beef, tripe, horse meat, etc. that they probably want to stay away from). The guy asks "what brings you to Rome?," and we tell him, and then I ask him what brings them to Rome ... "just a short family holiday," he says; they went to the soccer game wed. night, and now they've got 3 days to roam around Rome ... YOU WENT TO THE SOCCER GAME?! ALL SIX OF YOU?? I was thinking about those tickets that were selling for 3000 euro the night of the game ... So I asked him what the deal was on that. It was probably a little bit of a rude question, since the answer was likely to be something like: i'm a billionaire and thought it would be fun. But he looks around from side to side and leans over and says: We own Manchester United. !!! Whoa! That I hadn't expected. He was, in fact, a member of the Glazer family that bought the team a couple of years ago. Amazing. ...

non-native speaker:
Small correction: "I didn't even have a chance to blog about Barcelona's extraordinary 2-0 victory over ChelseaManchester in the Champions League final"
6.12.2009 6:04am
The River Temoc (mail):
With respect to the nature of the liberty [of expression], the legislature cannot, under any safeguards or process, confer such powers [ie to cut domestic internet access] on an administrative authority for the purpose of protecting copyrights.

Vive la France!
6.12.2009 6:14am
fobyoc (mail):
Small correction: "I didn't even have a chance to blog about Barcelona's extraordinary 2-0 victory over ChelseaManchester United in the Champions League final"

There is more than one team in Manchester.
6.12.2009 6:36am
J.T. Wenting (mail):
The French decision has nothing to do with free speech or copyright law.
The decision is based on the judge's opinion that internet access is a basic human right (where the heck did he ever get that idea?) and that therefore the law, which requires cutting off offenders' internet access, is a violation of the universal declaration of human rights.
By equating unlimited internet access (and the right to do whatever you wish on the internet) with free speech that judge has effectively made it impossible to enforce the law when the internet had anything to do with the crime being committed.
I wonder what will happen to existing decisions that restrict freedom of expression on the internet in France, and cause international companies to either voluntarilly censor information being sent to French IP addresses or face criminal charges.

Whether you agree with the law as it stood or not, IMO that reasoning is just plain bad.
6.12.2009 7:02am
Oren:

By equating unlimited internet access (and the right to do whatever you wish on the internet) with free speech that judge has effectively made it impossible to enforce the law when the internet had anything to do with the crime being committed.

He has not made it impossible, he has just required that there be some process due. That is, the core of the problem with the law is that it curtails internet access based on an administrative (not judicial) process without any safeguards -- it even goes so far as to place the burden on the 'defendant' by assuming him guilty.

The fact that a crime happened on the internet is not an excuse to dispense with the procedural requirements that ensure basic fairness.
6.12.2009 7:18am
Oren:

With respect to the nature of the liberty [of expression], the legislature cannot, under any safeguards or process, confer such powers [ie to cut domestic internet access] on an administrative authority for the purpose of protecting copyrights.

That's the crux of the decision -- we have a remedy that deprives someone of their basic rights (which, I might add, happens all the time -- convicts are routinely deprived of their rights) without the process of a trial.
6.12.2009 7:20am
arbitraryaardvark (mail) (www):
The 1789 Declaration of the Rights of Man and Citizen provides that ..'any citizen can speak, write and print freely, except in cases of legally defined abuse.'
That's interesting, because it's very similar to the free speech provisions (mostly unenforced) in state constitutions.
6.12.2009 7:54am
BZ:
So, by equating the Internet to speech, have they equated a mechanism for conveying communications with the content of the communications?

What distinguishes the Internet from a telephone? I know of no country which counts the right to telephone service as a basic right of humanity. Where universal service is available here, it is made so by statute, not right.

Even more interesting, isn't a basic right, such as speech, supposed to be independent of wealth, where access to a means of communications, which requires payment to someone for costs, would mean that someone has to pay for it?

Interesting questions, none of which are answered by the ringing endorsement of 1789.
6.12.2009 9:24am
[insert here] delenda est:
BZ, to be clear, they haven't equated the internet with speech, rather they have considered access to the internet as essential to the substantive use of the right to free speech. Further, this is only in the negative sense - and telephones are a terrible analogy anyway. You should think more along the lines of a ruling that you can't ban someone from speaking in public fora. No obligation to get them to a public fora, but an obligation not to prevent them (at least not without due process).

If it cheers you up, French internet access is a lot cheaper than here, ironically thanks to more effective communication.

And Oren is quite right, as much as anything, the decision is also about due process. The free speech part is really about what Americans would call (iirc) the 'standard of review' - because free speech is so important, measures infringing it are subject to very strict review.

Finally, it is true that the French Constitutional Court is slightly conservative (in the 'old guard' sense) and slighlty socialist. So in part, the decision may be seen as an extension of the socialist party's opposition to the law, which was more opportunist (iirc) than substantive.

But I wouldn't read too much into that view, personally, and I would see it in political context (for those so inclined) as more of a separation of powers decision in the context of a rapidly-expanding executive. As a matter of legal principle, of course, it remains a due process and free speech case.
6.12.2009 9:45am
Hervé (mail):
Professor Post: I don't think you need to rewrite the last chapter of your book ; France is -unfortunately- still far from the US interpretation of freedom of speech.
For example, on April 20th, a TV ad for a comedian's DVD was banned because in this 30 seconds clip, the comedian imitated the voice and gesture of our oh dear president Nicolas Sarkozy.

This decision by the Conseil Constitutionnel protects the Right to a fair trial, not freedom of speech. Indeed, as you have accurately noted, and despite the report you have quoted, it does not prevent a judge from terminating the internet access of a defendant found guilty of Internet piracy at the end of a judicial proceeding.
In other words, when the body pronouncing the sanction is the lawful authority, France still chooses to protect copyright over freedom of speech.

All this decision does is remind our Parliament that only judges may find one guilty and impose sanctions which restrict fundamental rights as a result.
Admittedly there are several notable breaches to this principle, but unless national security is at stake (for example implementation of UN-imposed targeted financial asset freezing require no judicial intervention), the Conseil Constitutionel tries its best to keep it that way.
6.12.2009 10:54am
antoinerc:
Hi, I'm a new commenter and long-time reader, I just wanted to say that you perfectly expressed the meaning of the decision, which, of course, is not to create a "basic human right" to internet access.

As you said, what was struck down was not the possibility to cut off an internet access (although it could be debated in theoty, but the Council did not go further), but the way that was chosen to do it. So the Council said to the Gvt : if you want to do it fine, but let a real judge decide on that, and not an administrative authority

The other thing in the decision, as was also said, is that the above mentioned sanction was to be applied to individuals who would have "failed to secure their internet access", and for that, a presumption of culpability was created. The Council struck that down too because it was a reversal of the burden of proof, but not on principle,rahter because it was too much of a restraint on freedom of expression and communication, as awe call it here(although presumption of culpability per se exists in French law, especially for traffic violations)

@[insert here] delenda est

As for the makeup Constitutional Council, it is more than slightly "conservative", in the sense that of the nine members, 8 were appointed by fmr. Pres. Chirac and his allies (every 3 years, the 9 members are appointed, 3 by the Pres., 3 by the Pres (Speaker) of the National Assembly and 3 by the Pres. of the Senate). There is only one member who was appointed by a socialist in 2001 (his term ends in 2010). However, the decisions are not political, but are sometimes thought to be because of the secrecy, the French legal traditions of not issuing opinions and and dissents, so that nobody knows who was where, and the way the members are appointed, although some of them are really apolitical lawyers, such as the former first president of the Cour de Cassation (judicial supreme court) and the former vice-president of the Conseil d'Etat (supreme administrative court)

Sorry if that wasn't clear, it was a better organized thought in my head...
6.12.2009 10:56am
antoinerc:
@ Hervé

I agree for the most part, but there were some reasonable arguments contained in the petition that the Council did not bother to consider because they already had enough to censure : for example, even if cutting the internet access (for up to a year, mind you) is pronounced by a court, you still have to pay for it (that's the ral penalty, plus that fact that you're barred to subscribe another one with another ISP), and about that there is a case to be made that the law creates an "enrichissement sans cause" (enrichment without cause) for the ISP, which would ba problem that a court would not want to cause...

Another example is that, at the end of the decision, the Council, in not-so-veiled terms, strongly encouraged the soon to be created HADOPI and CPD, whose role would now simply be to report alleged IPR violations to the courts, not to refer too many cases "pour une bonne administration de la justice" (for a good administration of justice), so as not to burden the courts, which really don't need that right now...
6.12.2009 11:05am
Hervé (mail):
antoinerc: these other "reasonable arguments" are not within the competence of the Conseil Constitutionnel : its only purpose is to make sure laws passed by the Parliament do not breach the French constitution, no more, no less.

The two main arguments you refer to -having to pay for a suspended connection and "enrichissement sans cause"- do not breach the French Constitution. Regarding "enrichissement sans cause" for example, the Fr Con contains nothing which requires that all earnings must be justified and lawful.
There are indeed rules and laws which require so, just not at the constitutional level.
6.12.2009 11:47am
antoinerc:
@ hervé

I agree, those are not constitutional provisions per se(although the Council referred to them in the past, and also contractual freedom, which the Council also regognized in the past). You could also argue that there is a breach of the "principe d'égalité" because for the same offense, people in the same situation would be treated differently (not everybody pays the same for internet) on a non-objective basis and with no general interest purpose
(which is the test for such a discrimination to be constitutional)

However, I am not an constitutional scholar, my field is more in the area of European law and antitrust litigation... My point was to hypothesize that even if a proper due process is established, the sanction could no be easily applicable because of other (infra-constitutional)reasons, such as the general theory of obligations. For example, imagine that a court orders your internet access to be cut while you still have to pay your ISP, do you retain the right to initiate an action de in rem verso ?
6.12.2009 12:16pm
Hervé (mail):
Ok, in theory, many things could be argued against. Legal systems, in every country, are full of "imperfections". These imperferctions are necessary and often desirable to make the system practical.

Yes in theory you could also argue that when your driving license gets suspended, you still have to pay for your car insurance even though you can't use it anymore, are you going to file an in rem verso complaint for this?

Yes you could also argue that when a judge puts someone in jail and thus prevents him from going to work anymore, he's penalizing the guy earning 100k/yr more than the 30k/yr employee, would you also consider this a breach to the "principe d'égalité".

Perfect due process is an ideal. The objective is to get as close to this ideal as possible. Actually reaching it provides little benefit for the efforts, costs, and impracticality that would result from such an endeavor.

In practice, is constitutional whatever the Conseil Constitutionnel says it is. If the Conseil didn't even take the time to explain why the other arguments raised in the petition do not breach the Constitution, it means they weren't of constitutional level/value.
6.12.2009 12:55pm
martinned (mail) (www):

In practice, is constitutional whatever the Conseil Constitutionnel says it is. If the Conseil didn't even take the time to explain why the other arguments raised in the petition do not breach the Constitution, it means they weren't of constitutional level/value.

Admittedly I don't know much about CC practice, but couldn't it also be the case that they simply decided the case on the simplest possible grounds? It only takes one reason to declare a bill/law (in the French case, it's somewhere inbetween) unconstitutional. So why discuss the others? (Except for guidance, of course. To a US jurist, that would sound like giving an "advisory opinion", but in many circumstances European courts tend to be OK with it.)
6.12.2009 2:09pm
A.S.:
There is more than one team in Manchester.

As if City would ever be in a Champions League final. Haha.
6.12.2009 2:16pm
martinned (mail) (www):

As if City would ever be in a Champions League final. Haha.

They did win the European Cup Winners' Cup once.
6.12.2009 2:28pm
Hervé (mail):
Admittedly I don't know much about CC practice, but couldn't it also be the case that they simply decided the case on the simplest possible grounds? It only takes one reason to declare a bill/law (in the French case, it's somewhere inbetween) unconstitutional. So why discuss the others? (Except for guidance, of course. To a US jurist, that would sound like giving an "advisory opinion", but in many circumstances European courts tend to be OK with it.)

You are correct. My previous comment is misleading. After verification, at paragraph 19 of the decision, the CC declares: "Considérant qu'il résulte de ce qui précède, et sans qu'il soit besoin d'examiner les autres griefs, que doivent être déclarés contraires à la Constitution"
Which means, roughly, "Consequently, and without having to review the other grounds..."
Therefore it can not be concluded that the grounds ignored by the CC aren't Constitutionnal issues.

They've simply taken the easiest and most obvious. I must admit I would have expected a bit less laziness and more guidance from the highest French Court.

However I remain convinced that the grounds described by antoinerc here do not raise Constitutional issues. In the absence of an actual decision by the CC on these specific arguments however, all opinions are equally valid.
6.12.2009 3:25pm
antoinerc:
@ Hervé

Your point is well taken, I was merely conjecturing on considérant 19, about other unexplored grounds that could have been interesting for the CC to rule on (there was an interesting article in Les Petites Affiches about that question last month). After all, the CC has been known to be creative sometimes...

(and just because I like to nitpick :), but your driving licence and car insurance analogy above is incorrect IMO : maybe you can't drive your car anymore, but you continue to pay for a service that is still actually provided, and your car can still be driven, just not by you)
6.12.2009 4:18pm
Hervé (mail):
I saw that one coming ;-) Assume the car is impounded then.
6.12.2009 5:14pm
antoinerc:
Gahh! If you keep moving the goalposts you'll eventually get me...

Then I'd respond that you (well, not you really, you don't have a licence anymore) just have to go get your car and pay the (exorbitant) fee and voilà! The impoundment(sp?) is a separate issue

I stand by my point on the subject, though. I'm not saying it's a slam dunk argument, but I think there is definitely something there... But it is getting slightly off topic
6.12.2009 5:27pm
Rhode Island Lawyer:

But he looks around from side to side and leans over and says: We own Manchester United. !!! Whoa! That I hadn't expected. He was, in fact, a member of the Glazer family that bought the team a couple of years ago. Amazing. ...


Too bad you hadn't arrived a few days before the game and met them then.
6.12.2009 5:33pm
Hervé (mail):
He was, in fact, a member of the Glazer family that bought the team a couple of years ago. Amazing...
Are you saying you were sitting next to the guys who received 94 million € ($130m) by selling Ronaldo to Real Madrid?
Amazing indeed ;-)
6.13.2009 6:46am

Post as: [Register] [Log In]

Account:
Password:
Remember info?

If you have a comment about spelling, typos, or format errors, please e-mail the poster directly rather than posting a comment.

Comment Policy: We reserve the right to edit or delete comments, and in extreme cases to ban commenters, at our discretion. Comments must be relevant and civil (and, especially, free of name-calling). We think of comment threads like dinner parties at our homes. If you make the party unpleasant for us or for others, we'd rather you went elsewhere. We're happy to see a wide range of viewpoints, but we want all of them to be expressed as politely as possible.

We realize that such a comment policy can never be evenly enforced, because we can't possibly monitor every comment equally well. Hundreds of comments are posted every day here, and we don't read them all. Those we read, we read with different degrees of attention, and in different moods. We try to be fair, but we make no promises.

And remember, it's a big Internet. If you think we were mistaken in removing your post (or, in extreme cases, in removing you) -- or if you prefer a more free-for-all approach -- there are surely plenty of ways you can still get your views out.