Decision no. 2009-580 DC of 10 June 2009 | Conseil constitutionnel 02/02/2023, 13:42 22. Firstly, Article 2 of the Declaration of 1789 proclaims : "The aim of every political association is the preservation of the natural and imprescriptible rights of Man. These rights are liberty, property, safety and resistance to oppression". The liberty proclaimed by this Article implies the right to privacy. 23. Secondly, it is the task of Parliament, under Article 34 of the Constitution, to lay down the rules concerning the fundamental guarantees granted to citizens for the exercising of their civil liberties. It is therefore incumbent upon it to strike a balance between the right to privacy and other constitutional requirements such as the protection of the right to property. 24. Under Article L 331-24 of the Intellectual Property Code, the Committee for the protection of copyright acts upon referral by sworn agents approved in the conditions laid down in Article L 331-2 of the same Code. These agents are appointed by duly constituted professional defence organizations, by companies in charge of collecting and apportioning copyright fees, and by the National Cinematographic Centre. 25. Under section 9 of the Act of January 6th 1978 referred to above " The processing of personal data pertaining to offences, convictions and security measures may only be carried out by ….4° The legal entities mentioned in Article L 321-1 and L 331-1 of the Intellectual Property Code, acting in the framework of the rights they are responsible for managing or on behalf of persons whose rights have been infringed as provided for in Books 1, II and III of the same Code and for the purpose of ensuring the defence of said rights". These legal entities are the companies in charge of collecting and apportioning copyright fees and duly constituted professional defence organizations. 26. The combined provisions of Article L 34-1 of the Post Office and Electronic Communications Code, as amended by section 14 of the statute referred for review, of the 3rd and 5th paragraphs of Article L 331-21 of the Intellectual Property Code and of Article L 331-24 thereof result in modifying the purposes for which such persons may process data connected with offences. They in fact make it henceforth possible for data thus collected to have a nominative nature also in the framework of proceedings before the Committee for the protection of copyright. 27. The fight against infringement of copyright by internet piracy is designed to achieve the objective of safeguarding intellectual property and cultural creation. However the authorization granted to private persons to collect data making it indirectly possible to identify persons having a right of access to online public communication services leads to these same private persons processing data of a personal nature in connection with offences. Such an authorization cannot, without constituting a disproportionate infringement of the right to privacy, have other purposes than to enable copyright holders to institute legal proceedings on the same footing as any natural person or legal entity who has been the victim of an offence. 28. Subsequent to the censure resulting from the foregoing paragraphs 19 and 20, the Committee for the protection of copyright cannot impose the penalties provided for by the statute referred for review. Its sole role consists in taking measures preliminary to the institution of legal proceedings. Its intervention is justified by the extent of copyright infringements committed via the internet and the utility, in the interests of good administration of justice, of limiting the number of offences brought before the courts of law. Hence the processing of data of a personal nature by the companies and bodies referred to hereinabove, together with the transmission of such data to the Committee for the protection of copyright in order to allow it to carry out its mission, are preliminaries to referring cases to the courts with jurisdiction over such matters. 29. Such processing of data shall be subjected to the requirements provided for by the Act of January 6th 1978 referred to hereinabove. Such data shall be transmitted solely to this administrative authority or to the judicial authorities. It will be incumbent upon the National Committee on Data Processing and Civil Liberties, when requested to authorise such processing of data, to ensure that the manner in which such processing is carried out, in particular the conditions governing the conservation of such data, is strictly proportional to the purpose it is sought to achieve. 30. Furthermore, contrary to what is claimed by the parties making the referral, the sworn agents referred to in Article L 331-24 of the Intellectual Property Code are not vested with the power to monitor or intercept private exchanges or correspondence. 31. In consequence of the foregoing, and with the qualification set out in paragraph 29, the processing of personal data does not fail to comply with the constitutional requirements referred to hereinabove. As regards the recourse to Decrees submitted to the Council of State 32. The parties making the referral contend that by leaving it to a Decree to specify the conditions in which the High Authority can award a label making it possible "to clearly identify the lawful nature" of offers of online communication services, Article L331-23 of the Intellectual Property Code gives the High Authority the power to determine discretionarily those offers which, in its opinion, are of a lawful nature. The parties making the referral add that Article L 331-32 could not leave it to a Decree to fix the procedure for assessing and labelling the means of monitoring access to internet. They argue that by acting thus Parliament failed to exercise the powers vested in it by Article 34 of the Constitution regarding fundamental guarantees granted to citizens for the exercising of their civil liberties. 33. Although Article 34 of the Constitution provides that "statutes shall determine the rules concerning … the fundamental guarantees granted to citizens for the exercise of their civil liberties" the implementation of the guarantees determined by Parliament is the preserve of the Government. The provisions of Article 21 of the Constitution, which make the Prime Minister responsible for ensuring the implementation of legislation and, subject to the provisions of Article 13, for exercising the power to make regulations, do not preclude Parliament from entrusting a public authority other than the Prime Minister with the task of fixing norms for the implementation of principles laid down by statutes, provided that such empowerment concerns solely measures limited in both scope and content. Such empowerment does not exempt the authority making regulations from compliance with constitutional requirements. 34. The awarding of labels attesting to the "lawful nature" of offers of online public communication services is designed solely to facilitate the identification by the public of offers of services respecting intellectual property rights. Under paragraph 2 of article L 331-23, the High Authority, when application is made to it for the award of such a label, shall be required to respond favourably once it has ascertained that the services proposed by such an offer do not infringe copyright or related rights. Leaving it to a Decree to fix the conditions for the awarding of such a label is solely designed to determine the manner in which applications for the award of such a label are to be received and examined by the High Authority. These provisions do not confer any arbitrary authority on the latter. 35. As worded subsequent to the censure resulting from paragraphs 19 and 20 hereinabove, Article L 331-32 is designed solely to facilitate the use of security devices intended to ensure the monitoring of access to the internet in accordance with the requirements of Article L 336-3. It is incumbent upon those in charge of making regulations to define the conditions in which this label will be awarded. Hence the provisions of sections 5 and 1 of the statute referred for review, other than those found to be unconstitutional, are not flawed by any failure by Parliament to exercise its powers to the full. WITH RESPECT TO SECTION 10 : 36. Section 10 rewords Article L 336-2 of the Intellectual Property Code. Under this article "In the presence of an infringement of copyright or a related right due to the contents of an online public communication service, the Tribunal de grande instance, ruling if need be in summary proceedings, may order at the request of holders of copyright in protected works or property or of the beneficiaries of said holders, or of companies for the collection and apportionment of copyright fees referred to in Article L 321-1 or professional defence organizations referred to in Article 331-1, the taking of all measures necessary to prevent or put an end to such infringement of copyright or a related right by any person likely to contribute to resolving the problem" 37. The parties making the referral argue that the possibility "of blocking, by measures and injunctions, the functioning of telecommunications infrastructures ... might deprive many internet users of the right to receive information and ideas". They also contend that the excessively wide and uncertain nature of this provisions may lead persons potentially concerned by section 10 to preventively restrict access to the internet. https://www.conseil-constitutionnel.fr/en/decision/2009/2009580DC.htm Page 3 of 10