Hadopi trembles, but does not break: La Quadrature du net, alongside other associations for the defense of digital freedoms (FFDN, Franciliens.net and French Data Network) defended last week a priority question of constitutionality (QPC) before the Constitutional Council and obtained a partial victory.
The hearing, which took place on Wednesday, focused on a specific point of the Hadopi law: article L. 331-21 of the intellectual property code which provides the modalities allowing the High Authority to recover data from ISPs of connection associated with the IP addresses collected. These provisions constitute an important aspect of the graduated response mechanism put in place by Hadopi: the defense companies of rights holders transmit to the high authority the IP addresses identified while downloading files protected by copyright, and c ‘is based on this text that Hadopi contacts internet service providers in order to obtain the names and connection data of suspected Internet users, in order to send them the famous Hadopi mails.
The associations attacked this provision on the grounds that it “disregarded the right to respect for private life, the protection of personal data and the secrecy of correspondence”. La Quadrature could notably count on existing case law on the subject: the association quotes in particular on its website two judgments of the CJEU of 2014 and 2016 which oppose the conservation of connection data as well as the past decisions of the Constitutional Council in similar cases, which has already censored legislative provisions on the right of access of administrative agents to this connection data several times in the past.
Sword in the water
Last Wednesday, the Constitutional Council delivered its decision: the Council thus estimates “that the last paragraph of article L. 331-21 of the code of the intellectual property is in conformity with the Constitution. In other words, Hadopi can always ask access providers to provide the names of subscribers whose IPs have been reported by copyright defense companies.
The Constitutional Council ultimately censored two other paragraphs of the article in question, which allowed Hadopi to obtain “all documents regardless of the medium” from access providers.
La Quadrature first claimed victory, before quickly correcting the situation in a new press release published shortly after the decision. “The censorship pronounced by the Constitutional Council led us to think, in the heat of the action, of a decisive victory that we hoped for. However, despite the restriction of the field of connection data accessible to HADOPI – which remains a victory -, a more careful reading leads us to think that there remains an interpretation according to which its activity should be able to persist “write the activists of the association. In a new press release published today, Hadopi drives the point home: titled “The action of Hadopi for the benefit of creation is reinforced by the decision of the Constitutional Council of May 20, 2020”, the press release welcomes the decision of the Constitutional Council and specifies that the provisions effectively censured by the council “have never been used by the Commission for the Protection of Rights to ensure the implementation of the graduated response.” “
Hadopi can therefore continue to send Internet users emails and reminders to order on piracy without having to fundamentally change its operation. By attacking this article of the Hadopi law, the associations behind the QPC hoped to strike a decisive blow to one of the High Authority’s most criticized activities, but it will continue its work.