Hadopi's legacy is a legislative horse rider. YeeHaa...

Two months ago, this guest Kat was writing about the future loss of the HADOPI authority, created in 2009 to fight against on-line piracy. Four years later, the newly elected French government considered that repression through internet suspension was not the most suitable way to lead the battle and that, as promised by candidate Francois Hollande, that authority should be removed. As a reminder, this was the situation at that time:

"It seems the final sanction consisting of a double penalty (a penalty fee and a temporary disconnection from the internet) was disproportionate and might be a threat to fundamental rights. Aurelie Filippetti, French minister of culture and communication argued yesterday that this measure was out of proportion, constituted a threat for freedom of communication and that access to internet should not be barred to any citizen based on such grounds. She added that this measure will not be replaced by any other and that the actual system was sufficient to fight against online piracy. Finally, she stated that the fight against domestic piracy had to be reoriented towards commercial websites making huge amount of money. 

... In consequence, the authority Hadopi (stands for “Haute Autorité pour la diffusion des œuvres et la protection des droits sur internet”) will soon disappear and all its powers will be transferred to an old French regulation authority, the Conseil Supérieur de l’Audiovisuel (CSA). 

… To summarize: Hadopi has been working for two and a half years and so far, while 4.7 million IP addresses have been detected by rightholders between October 2010 and February 2013, only 29 files have been sent to the French prosecutors' office, leading to… three decisions."

Since then, critics have risen regarding the transfer of powers to the CSA. While trying to have a more balanced system, the government may have potentially found a very liberal way to fight piracy.  The recent audition of CSA board member president, Olivier Schrameck, before the Senate on Tuesday did much to confirm this thought. Mr Schrameck emphasizes the growth of illegal downloading over the last few months and urged the CSA to have enough power to fight against privacy (for those who speak French, you may skip to min. 23 on the linked video). However this assumption only relies on information given by representatives of the film industry. The CSA is the French regulator for TV and Radio. Created in 1989, it has various missions such as "ensuring plurality in opinions expressed, organising radio and television electoral campaigns, rigorous news treatment, allocating frequencies to operators, ensuring human dignity is upheld, protecting consumers." The CSA is also in charge of ensuring "on-air defence and showcasing of French language and culture".

[Merpel asks: what is the relationship between Hadopi and CSA?] Well, both are French. Apart from this point, since the CSA has not been involved in any online regulation, it is hard to tell if the institution aims to operate in a similar way. However, it is no surprise that CSA claims to be legitimate to regulate online content as regulation "needs to be global and not structured between TV, radio or digital media."

This is how you transfer
regulatory  powers in France!

While many right holders will probably think that CSA is the proper tool against online piracy, Internet users and public liberties watchdogs may have a different opinion. The main critic is not aimed at the three steps graduated response, but at the potential creation of a website filtering system. Indeed, CSA has already mentioned that on line regulatory powers might be used in a different way.

Is this what some fear? If all Hadopi’s powers are transferred to CSA (those being listed in the French IP Code from article L331-12 to L331-37) and combined with existing and forthcoming regulation powers, there might be some room to create a filtering system implemented by Internet Service Providers (ISP). Structured through a system of labels given to websites that do not broadcast any infringing contents, such filtering system would be used by ISP, perhaps by default. If it happens, the European law and Court of Justice of the European Union cases seem insufficiently clear to give an answer on whether this would be legal or not. Moreover, the fact that the transfer is planned without any real discussion following the Lescure report is another source of concerns.

The transfer of powers should be presented through an amendment to the project of law on the independence of public audiovisual services, already adopted by the National Assembly on July 24. This law will increase the CSA's attributes. According to Article 45 of French Constitution, an amendment can be introduced if it has an indirect link with the law to be passed. This technique is called a legislative horse rider (cavalier legislatif).  This amendment will be introduced on October by Senator David Assouline, who was the representative asking questions to Mr Schrameck before the Senate. 

Since this law is being passed under a speedy procedure, there is no chance that the Assembly will discuss it.

Therefore, few options remain possible to avoid this transfer:

* The deputies can reject the entire law, which is very unlikely since the socialist party has the majority in this parliament chamber.
* The Constitutional Council may censored the amendment if seized. 

But  Mr Schrameck, Professor of Constitutional law and former general secretary of the Constitutional Council, seemed very confident, even citing some cases during the audition in which non-related amendment were not censored by the Council.

Thus, it seems most likely that the amendment will pass within the new law. Both will give strong power to CSA to regulate online piracy. Regarding this situation and the fact that Hadopi was removed in consideration of fundamental rights, this guest Kat wonders if Hadopi was really that bad ...