Regulation and Control of Communication: The French Online Copyright Infringement Law (HADOPI)

Abstract:     
In almost all democratic systems, new and old media have not only posed problems of definition, but have often resulted in attempts to contain and control information flow.

The key point is that computer-mediated communication is beyond the control of the nation-state "ushering in a new era of extra-territorial communication". The problem of information control has thus become a more serious concern due to the phenomenon of new media. In order to contain information and maintain control over access and content, some countries have tried to set up monitoring systems. Democratic countries’ experience with similar provisions reveals that restriction of the freedom of the media may be condemned and declared as unconstitutional and undemocratic.

An influential example of this approach is provided by the recent decision of the French Constitutional Council that, reviewing the constitutionality of laws under Article. 61, paragraph 2 of the Constitution, considered illegitimate a government law aimed at preventing the illicit circulation of digital content protected by copyright on the Internet.

The article will analyze the most controversial points of the decision. After a brief discussion of the effects that the French law has generated at European level, we focus attention on the broader issues raised by computer-mediated communications and their influence on democratization of freedom of expression.

Keywords: free speech, Hadopi, internet, rule of law, copyright, piracy, copyright enforcement, administrative authority, peer to peer

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