Decision no. 2009-580 DC of 10 June 2009 | Conseil constitutionnel 02/02/2023, 13:42 internet access: 1° Suspension of access to the Internet for a period of between two months and one year accompanied by the impossibility for the subscriber to enter into any other contract with any other operator for access to online public communication services 2° An injunction to take, within a period determined by the Committee, measures designed to prevent any repetition of the breach of duty ascertained, in particular by installing a security device from among those listed in paragraph 2 of Article L 331-32, and to account for the same to the High Authority on pain, if need be, of payment of a financial penalty. 10. Under Article L 331-28, the High Authority's Committee for the protection of copyright may, before initiating penalty proceedings, propose an amicable arrangement whereby the offending subscriber has his/her internet access cut off for a period of between one to three months, or is put under a duty to take the necessary steps to prevent the re-occurrence of said breach of duty. Article L 331-29 authorises this Committee to impose the penalties provided for in Article L 331-27 in the event of failure to comply with the terms of said amicable arrangement. Article L 331-30 specifies the contractual consequences of the suspension of access to the internet, Article L 331-31 provides for the conditions in which internet access suppliers are required to proceed to withdraw access; Article L 331-32 determines the manner for drawing up the list of devices of which the installation exonerates the access holder from all penalties; articles L 331-33 and L 331-34 set up a national register containing the names of persons whose access has been withdrawn. Lastly Article L 331-36 allows the Committee for the protection of copyright to retain the technical data supplied to it until such time as access to the internet has been completely withdrawn. 11. The parties contend that by giving an administrative authority, albeit independent, the power to impose penalties in the form of withholding access to the internet, Parliament firstly infringed the fundamental right of freedom of expression and communication, and secondly, introduced patently disproportionate penalties. They also argue that the conditions for imposing such penalties introduce a presumption of guilt which patently infringes the rights of the defence. 12. Article 11 of the Declaration of the Rights of Man and the Citizen of 1789 proclaims : "The free communication of ideas and opinions is one of the most precious rights of man. Every citizen may thus speak, write and publish freely, except when such freedom is misused in cases determined by Law". In the current state of the means of communication and given the generalized development of public online communication services and the importance of the latter for the participation in democracy and the expression of ideas and opinions, this right implies freedom to access such services. 13. Property is one of the rights of man enshrined in Articles 2 and 17 of the Declaration of 1789. The purposes and conditions of exercising the right to property have since 1789 undergone substantial changes characterized by the extension of the scope of this right to new fields. Among the latter exits the right, for copyright holders and holders of related rights to enjoy their intellectual property rights and protect the same within a framework set out by statute and in compliance with the international undertakings entered into by France. The fight against infringement of copyright through internet piracy is a response to the need to safeguard intellectual property. 14. Neither the principle of the separation of powers, nor any other principle or rule of constitutional status, precludes an administrative authority, acting within its powers as a public body, from exercising its power to impose penalties needed to enable it to carry out its tasks once the exercising of this power is accompanied by statutory measures designed to ensure the protection of constitutionally guaranteed rights and freedoms. In particular due respect must be shown for the principle of the legality of offences and punishments and the rights of the defence, principles which apply to all penalties intended to serve as a punishment, even though Parliament has left it to a non-judicial authority to impose such penalties. 15. Article 34 of the Constitution provides : "statutes shall determine the rules concerning … civic rights and the fundamental guarantees granted to citizens for the exercise of their civil liberties". On this basis Parliament is at liberty to lay down rules intended to reconcile the pursuit of the objective of fighting infringement of copyright on the internet with the right of free communication and freedom to speak, write and publish. Freedom of expression and communication are all the more precious since they are one of the cornerstones of a democratic society and one of the guarantees of respect for other rights and freedoms. Any restrictions placed on the exercising of such freedom must necessarily be adapted and proportionate to the purpose it is sought to achieve. 16. The powers to impose penalties created by the challenged provisions vest the Committee for the protection of copyright, which is not a court of law, with the power to restrict or deny access to the internet by access holders and those persons whom the latter allow to access the internet. The powers vested in this administrative authority are not limited to a specific category of persons but extend to the entire population. The powers of this Committee may thus lead to restricting the right of any person to exercise his right to express himself and communicate freely, in particular from his own home. In these conditions, in view of the freedom guaranteed by Article 11 of the Declaration of 1789, Parliament was not at liberty, irrespective of the guarantees accompanying the imposition of penalties, to vest an administrative authority with such powers for the purpose of protecting holders of copyright and related rights; 17. Furthermore, under Article 9 of the Declaration of 1789, every man is presumed innocent until proved guilty. Parliament cannot therefore introduce a principle of presumption of guilt in criminal matters. However, as an exceptional measure, such a presumption may be introduced, particularly in the case of minor offences, once such presumptions are not irrebuttable, the rights of the defence are respected and the available facts tend to confirm the likelihood of the commission of the incriminated act. 18. In the case in hand, under the provisions referred for review, the commission of an infringement of copyright at the address of the registered subscriber constitutes, according to the terms of the second paragraph of Article L 331-21 "the material ingredients of the breach of duty defined in Article L 336-3". Solely the party to the internet access contract may be the object of the penalties introduced by the provisions referred for review. In order to avoid the imposition of such penalties it is incumbent upon him, under Article L 331-38, to adduce evidence that the infringement of copyright or related rights was due to fraud perpetrated by a third party. Thus by reversing the burden of proof, Article L 331-38, introduces, contrary to the requirements deriving from Article 9 of the Declaration, a presumption of guilt on the part of the internet access holder such as to entail the imposition of penalties restricting or depriving him of his rights. 19. As a consequence of the foregoing, and without it being necessary to examine any other arguments raised, section 11 of the statute referred for review, paragraphs 2 to 5 of Article L 336-3 and in section 5, Articles L 331-27 to L 331-31, L. 331-33 and L 331-34 must be held to be unconstitutional. The same holds good for the second paragraph of Article L 331-21, the words "and ascertain the material ingredients of the breach of the duty defined in Article L 336-3", for the final paragraph of Article L 331-26 and the words "to be considered, in its opinion, as validly exonerating the access holder from liability under article L 336-3" found in the first paragraph of Article L 331-32 and the words "of which the installation shall validly exonerate the access holder from liability under Article L 336-3" found in the second paragraph of the same article. 20. The following must also be held to be unconstitutional, insofar as they are unseverable from section 5 : the words "and warning him of penalties incurred in the event of any fresh presumed breach of duty" found in the first paragraph of Article L 331-26; the words "together with all possible appeal procedures under articles L 331-26 to L 331-31 and L 331-33" found in Article L 331-35; the words "and until such time as withdrawal of access to the internet provided for by these provisions has been completed" found in the first paragraph of Article L 331-36 and the second paragraph of the article, the words "together with the national register referred to in Article L 331-33, enabling in particular persons in the business of offering access to online public communication services to have at their disposal, via a simple application, information strictly necessary to carry out the checks provided for by this same article", found in Article L 331-37, together with the second paragraph of Article L 33138. The same also holds good for the words, in section 16, "breach of the duty defined in Article L 336-3 of the Intellectual Property Code" together with I and V of section 19. As regards the right to privacy 21. The parties making the referral contend that the statute referred for review produces a patently unbalanced reconciliation between the protection of copyright and the right to privacy. The purpose Parliament seeks to achieve would require the implementation of measures for monitoring citizens and the introduction of a "generalized control of electronic communications" incompatible with the constitutional requirements of the right to privacy. The parties making the referral argue that the powers conferred on private agents, empowered to collect the addresses of subscribers suspected of sharing files of protected works, are not accompanied by sufficient guarantees. https://www.conseil-constitutionnel.fr/en/decision/2009/2009580DC.htm Page 2 of 10