Vive la France, part 872,364: "Copyright Gestapo" law struck down, declared unconstitutional

[Commie Pinko Dirtbag]

http://arstechnica.com/tech-policy/news/2009/06/french-court-savages-3-strikes-law-tosses-it-out.ars

French court savages "three-strikes" law, tosses it out
France's groundbreaking "three strikes" law that would disconnect repeat Internet file-swappers has been overturned by the country's Constitutional Council. "Innocent until proven guilty" still means something in France.
^{By Nate Anderson | Last updated June 10, 2009 12:01 PM CT}

The French Constitutional Council has ripped into the new Création et Internet law which would disconnect repeat online copyright infringers, calling the basic premise unconstitutional. "Innocent until proven guilty" remains a central principle of French law, and it cannot be bypassed simply by creating a new nonjudicial authority.

Better known as the "three strikes" law, Création et Internet set up a High Authority in France that would oversee a graduated response program designed to curb online piracy. Rightsholders would investigate, submit complaints to the High Authority (called HADOPI, after its French acronym), and the Authority would take action. Warnings would be passed to ISPs, who would forward them to customers; after two such warnings, the subscriber could be disconnected and placed on a nationwide "no Internet" blacklist.

The law passed on its second attempt — the first was foiled by a few Socialists who staged a bit of parliamentary theater to vote down the bill. But the Sarkozy government would not be denied, and it got its way a few weeks later.

The law still had to pass muster before the Constitutional Council, however, and this was a potential problem. The graduated response program was nonjudicial, setting up a separate "administrative" authority, but it performed an essentially judicial function (not just warning and monitoring, but sanctioning). And the sanction proceedings had a presupposition of guilt; sure, there was an appeal mechanism, but the burden of proof was on the Internet user to show that she had not been uploading those Stephan Eicher tracks. (more at link)

Courts siding with the people against the rich fucks. Can you imagine?

[Eric J in MN]

1. Maybe the judges didn't want to see their own power pushed aside...

...by non-judicial judging.

[Commie Pinko Dirtbag]

2. Whereas privatization of justice is a good thing, I suppose? -nt

[tocqueville]

3. correction : the Constitutional Council is not a court !!!!!!

The Constitutional Council (Conseil Constitutionnel) was established by the Constitution of the Fifth Republic on 4 October 1958. It is the highest constitutional authority in France. Its duty is to ensure that the principles and rules of the constitution are upheld. It considers conformity with the Constitution, and, since 1971, conformity with two texts referred to by the preamble of that constitution: the Declaration of the Rights of the Man and of the Citizen and the preamble of the constitution of the Fourth Republic, which are considered to be general principles of constitutional law.

The Council can only do so when issues are brought before it, it has no power to judge otherwise. Thus statute legislation can only be judged to be unconstitutional if it is brought before the Council before it is signed, after it is passed by Parliament: it is not possible to bring legislation to the Council afterward. However, executive decisions and regulations can be quashed by the administrative courts and the Conseil d'État. Furthermore, courts, especially the Court of Cassation, may refuse to follow decisions that they deem contrary to French Law or to treaties such as the European Convention on Human Rights.

The Council sits in the Palais Royal in Paris, near the Conseil d'État.

Membership in the Council is by appointment, and also is a right open to former presidents of the Republic. Members of the Council are not judges and the Council is not a court.

The Council is made up of:

* nine members who serve non-renewable terms of nine years, one third of whom are appointed every three years; three members each are appointed by the president of the Republic, the president of the National Assembly, and the president of the Senate;
* former presidents of the Republic who have chosen to sit in the council (which they may not do if they become directly involved in politics).

The president of the Council is selected by the president of the Republic.

As of 2007, the current members are <1>:

* Jean-Louis Debré, president of the Council, named president of the Council by the president of the Republic on February 23, 2007;

* Valéry Giscard d'Estaing, former president of the Republic;
* Jacques Chirac, former president of the Republic;
* Olivier Dutheillet de Lamothe, named by the president of the Republic in March 2001;
* Dominique Schnapper, named by the president of the Senate in March 2001;
* Pierre Joxe, named by the president of the National Assembly in February 2001;
* Pierre Steinmetz, named by the president of the Republic in February 2004;
* Jacqueline de Guillenchmidt, named by the president of the Senate in February 2004;
* Jean-Louis Pezant, named by the president of the National Assembly in February 2004.
* Renaud Denoix de Saint Marc, named by the president of the Senate in February 2007;
* Guy Canivet, named by the president of the National Assembly in February 2007;

http://en.wikipedia.org/wiki/Constitutional_Council_of_France

again it's not a court !!!! we are not that fucking crazy to let lawyers decide of what is constitutional or not.

[Commie Pinko Dirtbag]

4. Thanks for the clarification.

I suppose they have another body to review legislation that's challenged after signed on a constitutional basis?

[tocqueville]

5. not really except parliament

If the law is constitutional after reviews, it's valid. Then if the law shows that it is obsolete because of changing conditions, new laws or amendments are implemented after the same process (assembly > senate > council > decret of application).

That's why the Roe/Wade eternal controversy is impossible in France. France has a law on abortion, end of story. The only challenges that can be made are if the law is supposedly wrongly applied by somebody. Then a court will rule if the law has been applied or not, even to the last instance (this is hypothetical since I'm not aware of major if any cases). But the law itself cannot be challenged by a judge. If an opinion grows that the law should be modified (for example extending the legal abortion period after conception) a new law has to be voted (process as above). But nobody can pretend that the current law is unconstitutional, since it has been "constitutionalized" by the council, before implementation.