French Assembly Voted HADOPI 2

The French Assemblée Nationale passed yesterday the HADOPI 2 bill by 285 votes to 225. Opponents to the bill already announced that they will ask the Conseil Constitutionnel to review it.

Article 2 of the adopted text would insert an article 495-6-1 in the French IP Code and authorize the use of an ordonnance pénale (criminal order) procedure, in order to prosecute Internet users using their connection to download protected material.

Pursuant to article 525 of the French criminal procedure Code, no preliminary hearing is necessary in this case: “The judge rules without a prior hearing by making a criminal order; this either provides for a discharge, or imposes a fine together with, where necessary, one or more of supplementary penalties applicable. If he considers that an adversarial hearing would be useful, the judge returns the case file to the public prosecutor for it to be prosecuted with the ordinary procedural formalities.”

Article 3 ter A (nouveau) of the HADOPI 2 text also adds an article L. 335-7-2 to the French IP Code: “In order to impose the suspension penalty provided for in Articles L. 335-7 and L. 335-7-1 and to determine its duration, the court takes into account the circumstances and severity of the offence and the personality of its author, and in particular his occupation or social position, and his socio-economic situation. The length of the sentence must balance the protection of rights of intellectual property and respect the right to express himself and communicate freely, especially from his home. "

Will it really be possible to find out who is the perpetrator of the illegal downloading? I am not my IP address! I do not block access to my computer with a lock! Whoever used my computer and/or my Internet access is not necessarily me… Digital Identity and Real World Identity are not always the same... Using the criminal order procedure, in cases where one is not even sure who the criminal is? The French legislators may be a trifle too optimistic.