Top French court rips heart out of Sarkozy internet law

France's highest court has inflicted an embarrassing blow to President Sarkozy by cutting the heart out of a law that was supposed to put France in the forefront of the fight against piracy on the internet.

The Constitutional Council declared access to the internet to be a basic human right, directly opposing the key points of Mr Sarkozy's law, passed in April, which created the first internet police agency in the democratic world.

The strongly-worded decision means that Mr Sarkozy's scheme has backfired and inadvertently boosted those who defend the free-for-all culture of the web.

Mr Sarkozy and Christine Albanel, his Culture Minister, forced the law through parliament despite misgivings from many of the President's centre-right MPs. It was rejected in its first passage through Parliament.

The law innovated by creating an agency, known by its initials HADOPI, which would track abusers and cut off net access automatically to those who continued to download illicitly after two warnings.

The law was supported by the industry and many artists. They saw it as a model for the USA and Europe in the fight to keep earning a living from their music and film. Net libertarians saw it as the creation of a sinister Big Brother. Many called it technically unworkable. Some artists saw it as hostile to the young consumers who are their main customers.

The Socialist opposition appealed to the council on the grounds that the constitution was breached by the creation of an extra-judicial agency with powers to punish internet offenders.

The council, which includes two former presidents and is usually seen as elderly and out-of-touch, gave the Left more than it was hoping for.

Les sages – the wise men – as the council is known, took the teeth out of the law. They ruled that "free access to public communication services online" is a right laid down in the Declaration of Human Rights, which is in the preamble to the French constitution. It also said the law breached privacy by enabling the HADOPI agency to track people's internet activity.

It agreed that the law reached the separation of powers because if gave an administrative authority power to impose justice. And to boot, it violated the presumption of innocence because alleged pirates would be cut off without being able to defend themselves, the council said.

The Government insisted today that the HADOPI law would still be put into force, without its censured sections. Ms Albanel, whose job is now on the line, said that the agency would still send warnings to abusers although it was not clear how it would track them. It would then be up to prosecutors and the courts to take action, she said.

That situation already exists and does not work in France and most other countries. Courts do not have time to haul in the millions of ordinary users who pilfer copyright material online.

While bloggers and internet users cheered the council decision, announced last night, the affair has left a bad taste in the entertainment world. Young musicians opposed the law as a weapon designed to protect the big recording companies.

Old-school leftists like Juliette Greco, the grande dame of Left Bank song in the 1950s, strongly supported the crackdown and reproached the Socialists for betraying artists with their opposition to the law.

Patrick Bruel, a middle-aged popular singer with leftwing views, railed against the council decision this morning. Downloading a song free is like walking out of the bakers' with a baguette and refusing to pay for it, he said.

Europe Paves Way for Three-Strikes Style ISP Disconnection Policy

The European Parliament appears to have surrendered to pressure from Member States by abandoning amendment 138, a provision adopted on two occasions by an 88% majority of the plenary assembly, and which aimed to protect citizens' right to Internet access. The move paves the way for an EU wide policy supporting arbitrary restrictions of Internet access, such as customers being cut-off from the Internet by their ISP.

Under the original amendment 138 text any restriction of an individual could only be taken following a prior judicial ruling. The new update has completely removed this, meaning that governments now have legal grounds to force UK ISPs into disconnecting their customers from the Internet (i.e. such as when "suspected" of illegal downloading).

The Amendment 138 Update Text

"Any such measures liable to restrict those fundamental rights or freedoms may only be taken in exceptional circumstances and imposed if they are necessary, appopriate and proportionate within a democratic society, and shall be subject to adequate procedural safeguards in conformity with the European Convention for the Protection of Human Rights and Fundamental Freedoms and with general principles of Community law, including effective judicial protection and due process.

In particular, any measures may only be adopted as a result of a prior, fair and impartial procedure ensuring inter alia that the principle of presumption of innocence and the right to be heard of the person or persons concerned be fully respected. Furthermore, the right to an effective and timely judicial review shall be guaranteed."

Jérémie Zimmermann, spokesperson for La Quadrature du Net, said:

"Amendment 138 was in haste dissolved into useless legalese and soft consensus. The Parliament hurried to get rid of the safeguards of citizens' freedoms because it knew that with the imminent coming into effect of the Lisbon treaty, both institutions will soon share the legislative power in the field of judicial affairs. And the bad excuses we have heard these past few days to justify to abandon amendment 138 will then be totally obsolete. In the end, the Parliament was not brave enough to stand against the Council to defend citizens' freedoms.

Ministers of Member States, who want to be able to regulate the Net without interference from the judiciary, were rushing to kill amendment 138 and put an end to the negotiations. It is a shame that the Parliament's delegation, and especially rapporteur Catherine Trautmann, was not determined enough to use the political context to assert its authority in the European lawmaking process in order to protect European citizens. Even though it has been an interesting and constructive discussion, amendment 138 has turned, by the lack of courage of the delegation, into the emblem of the powerlessness of the Parliament."

Score 1 for Peter Mandelson.