Friday, June 12, 2009

Is the internet a right, pt. II? In France - yes

A couple months ago I mentioned the efforts in France to pass laws that would allow illegal file sharers to be barred from internet service. At that time, the law had been defeated, but was since brought up again and passed.

Now it's been struck down again by the French Constitutional Council. You can read their decision here, if your French is any good. Mine isn't, but the accounts are saying that the Council ignored the practical considerations - do you punish a whole household for one person's misdeeds? wouldn't you just end up nabbing the less savvy and less harmful thieves? - and went straight for the big issue.* Invoking the 1789 Declaration of the Rights of Man, which are enforceable under the French constitution, the Council wrote:

But the Council found the law violated both the constitutional right to freedom of expression and the right to presumption of innocence.

“It follows,” wrote the Court, “that in principle the legislature does not establish a presumption of guilt in criminal matters”. The Court also said exercising freedom of expression and communication, including that performed over the internet, is a prerequisite for democracy.

“Attacks on the exercise of this freedom must be necessary, appropriate and proportionate to the aim pursued,” it said.
In particular, the Council strongly disapproved that a legal punishment would be determined by a political agency rather than a court of law.

* In marked contrast with US Supreme Court tendencies, which Ed Brayton critiques here.

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