Wednesday, 8 July 2009

Technical explanations on HADOPI or a law in agony.

In the context of French bicameralism : ‘Assemblee Nationale’ (members of parliament directly elected by universal poll) + Senate election by representatives (assemblee des sages) 

They are two ways to introduce bills of law: 

  • Bill issued by government initiative = ‘projet de loi’
  • bill issued by members of parliament or senate = ‘proposition de loi’

In case of rejection of a ‘projet de loi’ or ‘proposition de loi’ initiated by the senate, the text is re-examined by the parliament until the two chambers find an agreement.  This is called the ‘navette parlementaire’. If no agreement is found, a mixed commission of 7 MP and 7 senators is created to find a solution. A new bill is then presented to each chamber. Ultimately the ‘Assemblee Nationale’ will have the last word. 

In some exceptional cases, the government can use the parliament prerogative to create a bill. This is called ‘une ordonnance’. The government will need to seek a special authorization from the parliament ‘une loi d’habilitaion’. This mode has rarely been used and reveal unpopular.

The ‘Conseil Constitutionel’ is the organ of protection of the constitution. Once a bill is voted, the President of each chamber or a groupe of 60 members of either chamber as well as the ‘President de la Republique’ can submit the text for control of constitutionality to the ‘Conseil Constitutionel’.

In the case of the HADOPI, the Conseil Constutitutionel mainly criticized three aspects of the project : 

- on the grounds of a conflict with fundamental human rights –Article 9 Déclaration des droits de l'Homme et du citoyen of 1789.  (presumption of innocence) was the basis for objecting to the idea that it should be up to those accused of illegal file-sharing to prove the infringement was the fraud of a third-party. 

- Article 11 declares that the ‘free communication of ideas and opinions is one of the most precious rights of man’. It was the justification for saying that internet access should not be cut off except by a court – attacks on the right to communicate must be ‘necessary, appropriate and proportionate’.

- privacy and data protection was the ultimate concern of the 'Conseil Constitutionel'.

HADOPI 2, has modified the criticized points, passed the Senate vote and will need to be adopted by the ‘Assemblee Nationale’ to pass.

With reference to the excellent article of Me Eolas in 'Journal d'un Avocat' - : Pierre-Yves Gaultier 'La propriété intellectuelle, un sous-droit',7614.html

[At last ... the 1709 Copyright Blog] Internet rights go on trial

- In 'Hadopi, c’est reparti',7675.html

Le corsaire Sarkozy et les trous dans la coque de l’« HADOPI 2 »


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