The French Copyright Authority (Hadopi): The Graduated Response and the Disconnection of Illegal File-Sharers

In June and October 2009, the French parliament passed controversial copyright laws aimed at deterring internet piracy. The laws establish a new anti-piracy scheme known, in France, as the graduated response and, in the US and other English-speaking countries, as “three strikes and you’re out.” Under this scheme, set to be implemented this summer, illegal file-sharers could see their internet connection temporarily suspended if they fail to mend their ways after having received two warnings urging them to stop their unlawful activities. Given the profound impact such disconnections can have on people’s lives; the scheme was extensively debated and had to clear several legal hurdles. The scheme needed to comply with France’s comprehensive privacy and data protection laws, notably by ensuring that copyright holders and internet service providers would not be allowed to share the personal data of suspected file-sharers. The scheme also needed to be proportionate and respect principles of due process, even more so after the French Constitutional Court ruled that access to the internet was a fundamental right under the 1789 Declaration on Human Rights. In an attempt to address those concerns, the new legislation puts in place a graduated response mechanism consisting of two distinct phases, administered by two distinct bodies. The warning phase, when notifications are sent to suspected file-sharers, is to be managed by a dedicated independent administrative authority, the “High Authority for the dissemination of works and the protection of rights on the internet” (in French: “Haute Autorite pour la Diffusion des Oeuvres et la Protection des droits sur Internet”) or HADOPI. The HADOPI, upon receiving complaints from rightholders, will have to assess the facts, identify the alleged file-sharers and send warnings to the relevant internet subscribers. Then, if the alleged infringers persist in their behaviour, they will be brought before the civil courts which will have the power, upon founding them guilty of unlawful activities, to order the temporary suspension of their internet connection. The article describes the rationale, fraught legislative history, functioning and controversial elements of this new scheme. We ask whether this model can not only achieve the (so-far) elusive goal of deterring illegal file-sharers but also guarantee the rights of citizens under both French and European law. To assess the French model, the paper will also compare the balance it achieves with that of copyright enforcement in the US as well as with that of other existing or proposed “three strikes” legislations elsewhere, most notably in the United Kingdom. This paper will conclude that the French model and its practical implementation should be studied and assessed thoroughly before any attempts are made to replicate it elsewhere, particularly when such proposals offer less guarantees in terms of human rights compliance.