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. ...