Wednesday 12 June 2013

Not So Fast: French Minsitry Of Culture Hesitates to Transfer Graduated Response Entirely to CSA



According to recent press reports, the proposed transfer of the three-strike graduated response from HADOPI to CSA (Conseil supérieur de l'audiovisuel) along with the substitution of the third-strike (internet suspension) with an administrative fine levied by the CSA has hit a speed bump.

It will be recalled that the recent Lescure report advocated such a transfer and recommended that the final strike be a relatively low administrative fine (€60).

Now, according to reports, the Ministry of Culture foresees serious legal obstacles to implementing a purely administrative fine as opposed to bringing the matter before the ordinary courts.

When in 2009 the original version of the HADOPI law, which provided that the final strike of internet suspension be pronounced by the administrative body itself, was submitted to review by the Constitutional Council it was held that this system did not pass constitutional muster.  The Council opined that such a measure could only be applied by the judiciary, which gave rise to the system that is currently in force (strikes one and two, warning letters, sent by HADOPI and then, where appropriate, strike three administered by a court).

Mindful of this 2009 ruling, it would appear that the Ministry is not convinced that the system advocated by the Lescure report would be constitutional.

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