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Monday, 11 April 2016

French State Ordered to Compensate Bouygues Telecom for HADOPI-related Costs

On April 4th, the French Conseil d'Etat (Supreme Court in administrative law matters) ordered the State to pay Bouygues Telecom (recently the target of an aborted merger with Orange) €900,000 by way of comepnsation for the costs incurred in the implementation of the HADOPI three strikes' regime.

Readers will recall that the regulatory framework surrounding the HADOPI regime adopted in 2009 called for a decree to be adopted by the government that would allow the ISPs tasked with collecting and transmitting  the wrongdoers' IP addresses to seek and obtain suitable compensation from the State for the associated costs.  However, the government never got aroud to actually promulgating the decree, with the result that in December 2015 the Conseil d'Etat formally ordered it to do so, holdng that the "reasonable delay" for so doing had long since expired.

Last week's ruling by the Conseil d'Etat was therefore the logical extension of its December 2015 decision.  It awarded the ISP €900,000 (which works out to 37.5 euro cents per IP address).

This is a decision sure to be noticed by all French ISPs, who have to date borne these costs.

It is interesting to contrast this ruling with the recent decision handed down by the Paris Court of Appeals in the Allostreaming case, where the Court held that the costs incurred in connection with the implementation of a blocking order were to be borne not by the rightsholders but by the ISPs.  One of the points made by the Appeals Court in its ruling was that, unlike other situations where the ISP was mandated by the public authorities (such as HADOPI), this was a private enforcement case.

Link to April 4 Conseil d'Etat ruling (in French) here

Post on Allostreaming decision here

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