The rights and obligations of Internet users have been hotly debated in recent months in a number of European countries. Particularly, challenges arising from illegal file sharing and downloading have caused for a great concern among internet users, politicians and the entertainment industry. Several European countries have so far taken action against internet sites that illegally disseminate work online, most recently in Sweden with a judicial decision against a torrent website. Similarly, France has attempted to introduce an internet piracy statute, which would grant an administrative authority the power to suspend an individual’s internet access if he/she infringes upon copyright law three times in a row. The French Constitutional Council thereafter held that only a judicial organ has the authority to restrict the right of accessing the internet.
In a similar development on May 6, 2009, the European parliament adopted a legislative resolution which argues that users’ internet access cannot be restricted without a previous decision of a judicial authority. The resolution provides in paragraph 22 that:
Member States wishing to implement measures regarding users’ access to and/or use of services and applications must respect the fundamental rights of citizens, including in relation to privacy and due process, and any such measures should take full account of policy goals adopted at Community level, such as furthering the development of the Community information society.
In short, the European parliament argues that individuals should be bestowed with a right to a judicial decision by an independent judicial organ. Surely, protecting copyrights is one of the necessary conditions for stimulating creativity and safeguarding cultural traditions and identities. Whereas individual countries are free to set up administrative organs to address increasing piracy on the internet, they cannot be granted carte blanche to enforce copyrights on the internet. Nonetheless, it is debatable whether there exists a fundamental right to access the internet, but there exists a fundamental right to a fair trial and due process in most national legal orders. It is feared that granting an administrative authority the right to stop a person’s individual access arbitrarily and without judicial remedy may result in violating basic constitutional and human rights standards in the majority of European countries. Additionally, there a number of different ways to tackle illegal file sharing and downloading. For instance, the European Commission argues that a full-fledged EU market for downloadable content could substantially curtail illegal downloading. Granting an administrative organ the right to suspend an individual’s internet access undermines the fundamental right of a person to a judicial decision and remedy. Above all, it appears that such administrative agency powers are not necessary in a democratic society.