It is not often that we resurrect our GCSE/O Level French (or bug our bi- or tri-lingual colleagues – thank you Elora and Emanuela) to read a French language statute, but HADOPI II is an exception. This is the French “three strikes” copyright protection law, nicknamed HADOPI II after the acronym for the Haute Autorité pour la Diffusion des Œuvres et la Protection des droits sur Internet, the new regulatory body created by the law. The “three strikes” relates to suspending internet access to subscribers who are deemed to have breached copyright, e.g. filesharers, after two previous warnings. HADOPI I was killed off by the Constitutional Court in June for the lack of any judicial intervention in the procedure to cut off internet access. HADOPI II was passed by a narrow majority (285 v 225) in the French National Assembly yesterday. Suspension can be for up to one year, and the subscriber can also be fined up to €5,000.
The only material difference in the new law is the introduction of a judicial step before the final “strike”, but this uses the l’ordannance pénale procedure. Whilst this is obviously not our specialist area, we understand that this is a light touch criminal procedure. It means that HADOPI will be able to draft a judicial order, including any penalties, for issue by a magistrate. The order becomes final after a certain period, unless the defendant appeals the order, in which case there is a trial.
Why is this important in the UK? Two reasons: the Government has announced that it is looking at similar legislation, and the possible inclusion of a three strikes provision is one of the outstanding matters holding up the passing of the reform of the Framework Directive and the other six-pack electronic communications directives.
[We would welcome any informed comment on the l’ordannance pénale procedure – is our summary above accurate?]