Monday 4 January 2016

French Government Ordered to Adopt Decree providing for ISP Compensation

In 2009 France adopted the so-called three-strikes graduated response to the scourge of illegal peer-to-peer file sharing.  Overseeing the system was Hadopi (Haute Autorité pour la diffusion des œuvres et la protection des droits sur Internet);  This administrative authority was responsible for sending the warning letters to infringers.  Identifying the infringers was the task of rightsholders and ISPs, with the latter bearing substantial costs in so doing.  The original statute provided for a decree that would compensate them for the specific costs incurred in carrying out this government-mandated task.  However the decree was never adopted.

Fed up with the situation, one ISP Bouygues Télécom (currently the subject-matter of a rumoured takeover by Orange; see here), took the government to court (State Council) arguing that its failure to adopt the decree was unlawful.

On 23 December last, it won its case against the government (see here).  The State Council opined that while the statutory provisions (Section L. 34-1, par. III of the Code of Post and Electronic Communication) could not, in light of their generality, be applied directly in the absence of a decree, such provisions do not leave any discretion for the Prime Minister in the adoption of such a decree.  The Council further held that the reasonable delay to do so had expired and, accordingly, annulled the French government’s implied decision to refuse to adopt the regulatory measures and directed the governement to take necessary regulatory measures within 6 months from the date of notification of the decision, failing which, a fine (astreinte) of 100 euros per day of delay would apply.

Given the relatively modest amount of the fine, it remains to be seen whether/when the government will actually comply and adopt the long-awaited decree.

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