Why the French Hadopi court decision will not affect Irma/Eircom deal

Yesterday, the French Constitutional Court struck down a new French law that introduced a 'three strikes' rule for suspected online file-sharers.

This has garnered huge attention worldwide. Some Irish media outlets are speculating that it could scupper Irma's 'three strikes' deal with Eircom.

In my view, they are wrong. What happened in France won't affect the Irma deal. At least, not legally. Here's why.

The proposed French law (called the Hadopi law) was new legislation, as opposed to an agreement between two companies/organisations (eg Irma and Eircom).

Under the law, an ISP had no choice but to cut off its customer (after three warnings), if that customer was suspected of illegal file-sharing. And no other ISP could take the affected customer on. So the person cut off was well and truly left without any online access (of their own).

The French court decided that this was draconian. It decided that such severity was an infringement of freedom of expression, as well as data privacy.

The scenario in Ireland involving the Eircom/Irma deal is completely different. There is no new law involved. There is no sanction against rival ISPs taking on the customer once he has been cut off from Eircom.

Irma sued Eircom for being liable for copyright infringers on its network. Eircom (advised by top lawyers) thought it might lose under Irish copyright law. So it settled out of court, rather than face a judgement against it. Thus was the 'three strikes' deal born.

That Irish copyright law hasn't changed. Neither has any other legal facet that convinced Eircom that it was on a loser against Irma. So nothing changes here, as far as I can see.

This is not to say that everything is full steam ahead with regard to Irma throttling Irish internet access in Ireland. On the contrary, Irma seems to have temporarily reneged on its warning to issue proceedings against ISPs who didn't agree to the same 'three strikes' deal as Eircom. None of the ISPs who were subject to solicitors' letters from the organisation have received any follow-up, as far as I can establish.

So is the strikedown of the French Hadopi law completely irrelevant to the situation in Ireland? In the short term, I think it is.

However, there is one longer-term issue that does arise: does a person have a right under freedom of expression to internet access?

In France, the constitutional court suggested as much. I can't see it arising anytime soon in Ireland. Nevertheless, imagine the following (unlikely) situation.

It is two years into the future. All ISPs have signed up to the Irma 'three strikes' deal. I, an ISP customer, have been warned by my ISP to stop sharing movies online three times, all of which I've ignored. I'm cut off. I sign up with a rival ISP. I do the same and am cut off. I keep going through all of the available ISPs and am cut off by every one. Eventually, there are no ISPs left that have not cut me off.

Now the question arises: do I have a right to internet access as a general right? Does an industry collectively have the right to deny me access to its firms' services? Is it merely the same as being a bad credit risk customer? Or is internet access considered to be a higher thing?

Perhaps legal guru and digital rights activist TJ McIntyre has a view on this...

Comments

[Marie]

TJ does indeed have a view, he's in the siliconrepublic article saying: "The ruling by the French Constitutional Court undermines IRMA’s attempt to get other ISPs to come aboard."

and he says that while the IRMA/Eircom thing is a private agreement this French ruling will still make it harder for the music industry here to force the ‘three strikes’ rule on Irish ISPs.

Cheers,

Marie

[Adrian]

Cheers Marie.

I mean, whether he has a view on the question of whether internet access is a right under freedom of expression.

As to what he's quoted as saying, don't agree with him.

Adrian

[Marie]

Now that *is* an interesting legal debate. Is internet access a right or a privilege? Has this been argued in court before? I assume there is no precedent for this?

It's like having a transport system where there are no individual cars and you can't walk, only private bus companies exist. If you are banned from all for, say, hopping on without a ticket you have no way of traveling from place to place. You cannot be denied freedom of movement.

[andyaz]

The overturning of Hadopi was good news but I don't see how a French ruling on legislation affects the private IRMA/Eircom deal in Ireland. Surely this will be down to if/where the deal contradicts European regulations (not merely french law)?

Would be interested to know how the likes of ammendment 138 (still being voted on) could affect this deal.

That ammemdment seems to conflict with the 3 strikes policy, as it protects both our right to "access to information" and our right to a fair hearing ("a judgment by an independent and impartial tribunal established by law"). So, perhaps the deal remains unchallenged but the implimentation of 3 strikes will prove more difficult?

[Thomas Brunkard]

If Hadopi is a gonner then the French can stop holding up the EU Telecoms Reforms package due to their problems with ammendment 138.

If 138 goes through then la mort du Hadopi will be de naissance of secured net neutrality.