The content producers’ lobby is very ancient and powerful in France (it was started by the playwright Beaumarchais in the 18th century). The fact President Sarkozy’s wife is an important rights holder may have something to do with his determination to pass the abject Hadopi law, which would cause Internet users caught illegally downloading content to be cut off from the Internet (while still having to pay their ISP fees).

The law was exceedingly stacked towards the content industry. The burden of proof was on the defendant rather than the prosecution, and an extra-judicial quango named Hadopi was to be set up to enforce these sanctions. The European Parliament, to its credit, had opposed such measures and restated that Internet access is a fundamental right that can only be curtailed by proper judicial authority. The first reading of the law led to a surprise defeat, as the majority UMP legislators were unenthusiastic about supporting a law that would alienate the young, and absenteeism was such that the minority Socialist party managed to overwhelm those few present. This is one of the exceedingly few times I actually agree with the feckless Socialists… The President brought his whip to bear and the law was put back on the agenda and voted in the second time.

Today, the Conseil Constitutionnel ruled on a challenge to the law put by Socialist parliamentarians, and gutted it in line with the European Parliament. In doing so, it affirmed that Internet access is a fundamental human right, drawing all the way back to the original Human Rights declaration of 1789, and that Internet users are innocent until proven guilty.

This is an important decision. In Roman law, judges’ discretion is much more limited than in the Anglo-Saxon Common law tradition. The US Supreme Court found in Roe vs. Wade a right to abortion in the US Constitution that is far from obvious, and such a decision by unelected judges lacked universal legitimacy. In contrast, abortion was legalized by an act of Parliament in France, which is why opposition to it is nowhere near as bitter as in the US. The Conseil Constitutionnel does not invent constitutional principles, it only censures laws or more commonly individual articles (the role of ultimate court of appeals belongs to another institution, the Cour de Cassation). The significance of it finding Internet access a fundamental right cannot be overstated.