French Representatives Request the Conseil Constitutionnel to review HADOPI 2

French representatives have requested the Conseil Constitutionnel to review the so-called HADOPI 2 bill, adopted by the French Assembly on September 22.

I have translated below some parts of the request, which can be found in French here.

The representatives are mainly concerned by the fact that the law punishes Internet users found guilty of gross negligence (négligence caractérisée), but this concept is too vague and thus violates the principle of legality.

Also it can be technically difficult to cut off only Internet service. It is possible in some parts of the French territory, and cutting off Internet service wouldn’t affect, say, telephone or television services, whereas in others parts of France, having one's Internet access cut off may leave you without phone nor television services.

The representatives wrote:

"In addition, it is equally obvious that the legislature did not consider your June 10, 2009 decision by which you took care to remind that 'attacks on freedom of expression must be necessary, appropriate and proportionate to the objective pursued.' But by punishing the offense of "gross negligence" by cutting off access to the Internet, it is nothing to say that the legislature has established a penalty obviously and manifestly disproportionate. It is indeed manifestly disproportionnate to sanction "gross negligence" - a concept whose vagueness is moreover incompatible with the principle of legality of crimes and punishments – by a measure that is a serious violation of a fundamental freedom -- cutting off access to the Internet. By creating this offense the legislature adds to the confusion and is losing sight of all proportion on the scale of penalties.

It is equally strange, constitutionally speaking, to establish by law a penalty which everybody knows that the implementation or not will depend on technical realities. In other words, as has been stressed by the ARCEP, that bundled or unbundled services do not have the same consequences in cases of suspension of Internet access. Indeed, in non-unbundled areas, it will be technically difficult to maintain IP telephony if internet access is cut. Therefore, it is manifestly contrary to the principle of equality before the law to establish a criminal penalty to which the implementation will not be the same across the country and depends on contingency techniques. If by some miracle you validate the procedural devices submitted for your consideration, it is nevertheless assumed that this law could come into force before the day the penalty may be applied uniformly throughout."