[Chapter-delegates] Internet and Constitution

Wed Apr 27 00:10:39 PDT 2011

Hello,

HADOPI is a silly and obsolete law wich was done not to stop piracy
but to be pleasant with lobbies.

The first law was not approved by the Constitutional council because
internet access could ve cutby an administrative authority.

The Constitutionnal council said :

" 11.  The parties contend that by giving an administrative authority,
albeit independent, the power to impose penalties in the form of
withholding access to the internet, Parliament firstly infringed the
fundamental right of freedom of  expression and communication, and
secondly, introduced patently disproportionate penalties. They also
argue that the conditions for imposing such penalties introduce a
presumption of guilt which patently infringes the rights of the
defence.

12.  Article 11 of the Declaration of the Rights of Man and the
Citizen of 1789 proclaims : "The free communication of  ideas and
opinions is one of the most precious rights of man.  Every citizen may
thus speak, write and publish freely, except when such freedom is
misused in cases determined by Law". In the
current state of the means of communication and given the generalized
development of public online communication services and the importance
of the latter for the participation in democracy and the expression of
ideas and opinions, this right implies freedom to access such
services.  "

decision is here :
http://www.conseil-constitutionnel.fr/conseil-constitutionnel/root/bank/download/2009-580DC-2009_580dc.pdf

So, the first HADOPI law was modified and then internet access can be
cut only by a judge decision.

Regards,

Philippe Batreau

2011/4/27 Tommi Karttaavi <tommi.karttaavi at isoc.fi>:
> Hi,
>
> This is a fascinating discussion and I agree largely with what Markus says
> here. However, there is still the question of how France, whose constitution
> protects the freedom of speech, can approve a law like HADOPI? Obviously the
> civil rights of criminal offenders can be limited, but cutting off the
> internet connection because of downloading copyright protected material
> seems like too harsh a punishment, if the Internet is considered to be a
> major means for self expression.
>
> The above concern aside, the universal service obligation is a good
> regulative tool. The downside is that 'functional' and 'affordable' are
> difficult concepts to define legally. Especially the latter and especially
> in countries where there are great differences between the income levels of
> citizens.
>
> Regards,
>
> Tommi
>
> On 27.4.2011 3:45, kummer at isoc.org wrote:
>>
>> There are others, although I do not have an overview. Switzerland for
>> example also included the Internet into the universal service obligation.
>> For some reason the Swiss policy announcement was more low key and therefore
>> received less attention than the Finnish example.
>>
>> The main point here is that there is a fundamental difference between a
>> human right as enshrined in Article 19 and a positive right, as the right to
>> have an Internet connection would be. The classical human rights protect the
>> individual from the State. The State is asked not to do anything, but to let
>> the individual enjoy his basic rights and freedom. The positive right
>> however gives an obligation to the State "to do something", that is to
>> provide access to the Internet. Apart from some basic questions as to who
>> would pay for this right, it would also blur the role of the State and could
>> be potentially dangerous, as it might be tempting for some governments to
>> interpret extensively their role and also interfere in an are where they
>> should keep out.
>>
>> The universal service obligation is a much neater solution, as it imposes
>> an obligation on the carrier to provide access to areas where otherwise it
>> might not be commercially viable. This is a well tested regulatory measure
>> and used for postal and telecommunication services in many countries.
>>
>> Best regards
>> Markus
>>
>>
>>
>> -----Original Message-----
>> From: "Alejandro Pisanty"<apisan at servidor.unam.mx>
>> Sent: Tuesday, 26 April, 2011 17:47
>> To: "Khaled KOUBAA"<khaled.koubaa at gmail.com>
>> Cc: chapter-delegates at elists.isoc.org
>> Subject: Re: [Chapter-delegates] Internet and Constitution
>>
>> Khaled,
>>
>> the primary example at a national level is FINLAND.
>>
>> Alejandro Pisanty
>>
>>
>> .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  . .  .  .  .  .
>>  .
>>       Dr. Alejandro Pisanty
>> UNAM, Av. Universidad 3000, 04510 Mexico DF Mexico
>>
>> Tels. +52-(1)-55-5105-6044, +52-(1)-55-5418-3732
>>
>> * Mi blog/My blog: http://pisanty.blogspot.com
>> * LinkedIn profile: http://www.linkedin.com/in/pisanty
>> * Twitter: http://twitter.com/apisanty
>> * Unete al grupo UNAM en LinkedIn,
>> http://www.linkedin.com/e/gis/22285/4A106C0C8614
>>
>> * Ven a ISOC Mexico, http://www.isoc.org.mx, ISOC http://www.isoc.org
>> *Participa en ICANN, http://www.icann.org
>> .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .
>>  .
>>
>>
>> On Tue, 26 Apr 2011, Khaled KOUBAA wrote:
>>
>>> Date: Tue, 26 Apr 2011 10:31:06 +0100
>>> From: Khaled KOUBAA<khaled.koubaa at gmail.com>
>>> To: chapter-delegates at elists.isoc.org
>>> Subject: Re: [Chapter-delegates] Internet and Constitution
>>>
>>> Thank you Markus.
>>>>
>>>> To define access to the Internet as a positive right is not without
>>>> problems. This is best dealt with as a universal service obligation, as some
>>>> European countries have done already.
>>>>
>>> Can you give e some example of which European country and what did they
>>> do ?
>>>
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