The Constitutional Council has just dealt an unexpected blow to the Hadopi. The text on which its power to identify Internet users is based is contrary to the Constitution and must be repealed. The High Authority however benefits from a delay.
Are the powers available to Hadopi (High Authority for the dissemination of works and the protection of rights on the Internet) in the context of the famous “graduated response” in contradiction with the Constitution? Yes, replied the Constitutional Council in a decision dated Wednesday, May 20. The tools granted to identify Internet users do not guarantee sufficient protection of privacy. Consequently, the articles concerned will be repealed, but only on December 31st.
As a reminder, the graduated response is the central mechanism of the anti-piracy system that appeared with the Hadopi. It is, in essence, to repeatedly warn Internet users caught in the bag before turning to justice to apply sanctions. To spot pirates, Hadopi monitors networks peer to peer (P2P, or peer-to-peer), which does not provide identities, but IP addresses. It is the law that provides the means to reconcile. She anticipates that her agents “may, in particular, obtain from electronic communications operators the identity, postal address, electronic address and telephone contact details of the subscriber” as well as “all documents, whatever the medium”, deemed useful for the procedure, including the connection data.
Conflict with the right to respect for private life
For the Wise, the text which grants its powers to the Hadopi has several problems. First, it opens up the possibility of requiring “all documents, whatever the medium”, but does not specify “the people with whom [ce pouvoir] is likely to be exercised “, which means that “the legislator has neither limited the scope of exercise of this right of communication nor guaranteed that the documents subject to it have a direct link with the failure to fulfill the obligation set out in article L. 336-3 of intellectual property code “.
In addition, Hadopi agents can request “all the connection data held by electronic communication operators. However, given their nature and the processing to which they may be subject, such data provide numerous and precise information on the persons concerned, particularly attentive to nor do they necessarily have a direct link to the breach of the obligation set out in Article L. 336-3 “.
Finally, there is the use of the term “in particular”, an open door which has no place in such an article. The Constitutional Council comes to a logical conclusion: the text comes up against the right to respect for private life, and the paragraphs concerned as well as the presence of the word “in particular” are “contrary to the Constitution“. This is an official declaration of unconstitutionality, which requires the repeal of the provisions referred to. The Elders note, however, that “the immediate repeal of the provisions declared contrary to the Constitution would entail manifestly excessive consequences”, namely the probable suspension of Hadopi’s activities. Consequently, “the date for the repeal of the contested provisions should be postponed to December 31, 2020”.
Small victory for the opponents of Hadopi
In fact, the graduated response is not fundamentally threatened since the Constitutional Council did not consider the possibility of having recourse to operators to identify the IP addresses identified as problematic. The government should also have more time than necessary to produce a new text – corrected – before the end of the year. Hadopi is therefore unscathed… for the moment, its merger with the CSA remains in the pipeline.
The associations which had submitted this priority question of constitutionality last February nevertheless see it as a battle won. La Quadrature du Net, in particular, initially believed in a decisive blow in the context of its long-term war against the Hadopi, but evokes with a little more hindsight “a much more modest victory”. The association does not fail to emphasize that this episode “was grafted on to a dispute over a longer period of time, another part of which is currently underway, notably before the Council of State. Other aspects of the graduated response system remain very open to criticism. We will now tackle it”.