How copyright exceptionalism in France risks undermining the EU legal system

Back in May, Walled Culture wrote about an important case before the EU’s top court, the Court of Justice of the European Union (CJEU). It involved the “High Authority for the dissemination of works and the protection of rights on the Internet” (Haute Autorité pour la diffusion des œuvres et la protection des droits sur internet – the infamous HADOPI), and concerned the question whether copyright was more important than privacy. Disappointingly, one of the CJEU’s key advisers, the Advocate General (AG) Szpunar, had already issued an opinion that essentially came down on the side of copyright. The same adviser has now issued a second opinion on the matter, and a post on the European Law Blog argues that it is even worse than the first:

In his second Opinion on the HADOPI case (C-470/21) (short for: Haute Autorité pour la diffusion des œuvres et la protection des droits sur internet), the Advocate General Szpunar seemingly suggests that the Court of Justice of the European Union (CJEU) should change its jurisprudence when Member States refuse to apply it. He argues that the CJEU should be “pragmatic” and “nuanced” when national courts fail to implement its case law. This blog post argues that, if followed by the Court, the interpretation proposed by the AG would lead to a severe weakening of the CJEU’s authority and legitimacy, more generally. This would be of great symbolic significance in an already challenging environment for the Court which is faced with increasing defiance of Member States in the field of data protection.

The European Law Blog post is quite long, and involves various EU laws and CJEU judgments. But the key point is simple: that allowing the French government to continue to ignore privacy law in order to allow the copyright industry to track down people who allegedly shared unauthorised material online would undermine key aspects of the EU legal system:

It would … potentially weaken the Court’s legitimacy in the EU’s legal governance architecture. Since Digital Rights Ireland and Others (C‑293/12), Member State governments have wilfully refused to apply the Court’s case law and persisted in implementing illegal data retention frameworks. The Commission, which is normally tasked to bring errant Member States into line with EU law, has so far avoided to launch infringement procedures, de facto making the Court’s rulings ineffective. This lack of enforcement undermines the rule of law. If AG Szpunar’s proposal to change direction is followed, it is clear that it would have detrimental consequences for fundamental rights and the democratic principles in the EU.

What’s particularly shocking is that one of the EU’s top legal advisors should acquiesce in this copyright exceptionalism that seeks to place the protection of a government-backed intellectual monopoly above the fundamental human right to privacy. Our only hope is that the CJEU itself recognises how monstrous this would be, and refuses to do the same.

Featured image created with Stable Diffusion.

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