France to disconnect first Internet users under three strikes regime

A high school teacher who claims not to know how to download music and movies is among the first ten people in France who face disconnection from the Internet over alleged illegal file-sharing.

HADOPI, the government agency created to implement the French “three strikes” scheme against users of peer-to-peer networks, published its statistics (in French) for the first nine months of its operations earlier this month.

In total, HADOPI received more than 18 million notifications from rights holders who independently survey peer-to-peer networks for copyright infringement. Due to financial and administrative restrictions - the agency only employs “about sixty” people - only one million of these notifications were followed up with a request for information from ISPs. HADOPI succeeded at identifying around 900,000 alleged infringers.

470,000 individuals received a first “recommendation” to cease file-sharing, sent out at a rate of 5,000 per day. Following this, 20,000 people received a second letter after being caught file-sharing again. In the eyes of Mireille Imbert-Quaretta, who heads the Commission for the Protection of Rights at the HADOPI, “these numbers show that the system is essentially pedagogical.”

However, the consequence that has made HADOPI so controversial only kicks in with the third strike. In early July, the first ten people to reach this strike received a notification that they were caught illegally file-sharing three times, meaning that their Internet connection will be disconnected. The twist? One of them says he does not even know how to use peer-to-peer software.

Robert Tollot, a 54-year-old small-town high school teacher, is accused of having downloaded music by David Guetta and Rihanna. When he received the first letter, he thought it had been a mistake, he says (in French), and informed HADOPI. After the second notification, he called the agency and was advised to secure his WiFi network. Despite his attempt to do so, Tollot was informed recently that he had been caught downloading the movie Iron Man II, although he says “I don’t even know how to do that.”

Tollot suspects that he is the victim of WiFi hacking, and that somebody else must have downloaded the music - the genre is “not my cup of tea,” as he says - via his network. For HADOPI, this is not a sufficient reason to spare him from consequences, as Imbert-Quaretta explains in an interview (in French) on the agency’s website:

“Avec la loi « Hadopi 2 », il n’y a pas de lien entre la contravention de négligence caractérisée et l’installation d’un moyen de sécurisation labellisé. Si l’abonné n’a pas changé de comportement au bout de trois fois, il n’a donc pas mis en œuvre de moyen de sécurisation.”

“With the second HADOPI law, there is no link between the contravention of negligence and the installation of an accredited security software. If the subscriber has not changed his behavior after three times, he has not put security measures in place.”

Imbert-Quaretta refers to a decree (in French) issued shortly after the HADOPI law became effective, which defines negligence as “not having put in place security measures” or having “lacked diligence in putting in place this measures.” Such negligent behavior can be punished with a fine of 1500 Euros and/or up to a month of disconnection from the Internet - the same penalty that awaits individuals found to have illegally downloaded content themselves. However, critics have argued that the definition is unclear as it fails to define what it means by “certified security measures.”

Tollot argues that even a properly secured network can be compromised. Whether or not that was the case in his situation, he does not seem to be alone. More than ten percent of those who received a second warning from HADOPI reportedly claim not to have downloaded anything (in French) themselves. So far, HADOPI has declined to comment on Tollot's case.

For those who have been accused of illegally downloading copyrighted material three times (within 18 months), the next step is a hearing at HADOPI’s Commission for the Protection of Rights in Paris, an appointment that awaits Tollot in September. However, this hearing is not meant for appellation, but rather to clear the relevance of the allegations, which can then be brought before a court. The judges can then decide to shorten the disconnection, but not to revoke it completely. The burden of proof is on the appellant.

Tollot says he is willing to fight the suspension of his Internet connection in court, and that he is willing to take the matter to the European Court of Justice should he be denied appeal in France. Such a lawsuit could have far-ranging implications for HADOPI, in particular in light of a recent condemnation by UN Special Rapporteur Frank La Rue, who named France’s three strikes regime alongside Great Britain’s as a human rights violation.

The French government, which instituted HADOPI in 2009 in its second attempt (the first attempt was rejected by the National Assembly), claims that its three strikes regime is “pedagogical” and less harmful than civil lawsuits brought by copyright holders. Critics, however, assert that the bill has largely been written under the influence of heavy lobbying from the entertainment industry.

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