II-4.2 : The Act of October 28th, 2009 (HADOPI II) establishes criminal sanctions for online copyright infringement, to be administerered by a regulatory authority: the "Haute Autorité pour la diffusion des œuvres et la protection des droits sur Internet" (HADOPI)

The Act of June 12^th 2009 to promote dissemination and protection of creative works on the Internet, called the Hadopi I Act after the name of the new administrative authority it creates: La haute autorité pour la diffusion d’oeuvres et la protection de droits sur Internet – ’Hadopi’,or the High Authority for the Dissemination of Works and Copyright Protection on the Internet, puts an end to the highly-mediatised parliamentary shilly-shallying on this issue. This law originated with Parliament’s desire to contain the phenomenon of the unauthorised sharing of files containing works protected by intellectual property laws.

Parliament’s desire was first expressed through its bill named droit d’auteur et droits voisins dans la société de l’information (DADVSI—Copyright and Similar Rights in the Digital Society), which put forth the idea of a three-strikes riposte system (Act n° 2006-961 of August 1^st 2006). Article 24 of this bill planned for the possibility of punishing the unauthorised reproduction for one’s personal use of a copyrighted work, interpretation, phonogram, video recording, or programme by a simple fine, when these works were made available through a peer-to-peer file-exchange system. But, the Conseil Constitutionnel (French Constitutional Council) censured this law on the pretext that this disposition was contrary to the principle of equality before criminal sanctions, in that it implemented a difference in treatment between people who used peer-to-peer file-exchange services, and those who use other online communication services (section 65 of the Conseil Constitutionnel’s judgement).

 In order to pursue the goal of combating illegal file-sharing, the two houses of the French Parliament voted Act Hadopi I on May 13^th 2009, which implemented the three-strikes system allowing the newly created Hadopi to cut off internet service to people who continued to illegally file-share, despite having received multiple warnings concerning the illegal nature of their activity. This bill was also judged unconstitutional by the Conseil constitutionnel in a June 10^th, 2009 decision. The Conseil declared that the freedom of thought and opinion guaranteed by Article 11 of the 1789 Declaration of the Rights of Man and of the Citizen implies—due to the current state of various means of communication, and especially the generalised development of public online communication services, and their importance in allowing citizens to participate in democratic society and to express their ideas and opinions—that everyone must be free to access these services. Consequently, the Conseil decided that the new independent administrative authority implemented by the legislator could not cut off Internet access, and only a court of law could be allowed to pronounce such a penalty. This decision had major consequences, removing all criminal sanctions from the law.

This scheme was therefore reworked by the Act of October 28^th, 2009, called Act Hadopi II, which organises simplified legal proceedings for copyright infringement committed using an online communication service, i.e. a court order taken by a single magistrate of a Tribunal correctionnel (a French court dealing with criminal issues, similar to a British Magistrate’s Court). Moreover, the Act provides for a complementary penalty: the suspension of Internet access for a period of up to one year, and a ban on subscribing to another internet provider service during the suspension period. In a decision handed down on October 22, 2009, the Conseil constitutionnel approved these provisions, considering that the scale of online copyright infringement justified the simplified legal proceedings and the presence of a single magistrate, as long as these provisions did not create a difference in the treatment of people committing such acts. The Conseil constitutionnel only censured the provision allowing the criminal magistrate to decide by court order on the amount of damages requested by the plaintiff, because this must be decided by a separate Act of Parliament, and not by Decree.