The French Constitutional Council has ripped into the new Cr?ation et Internet law which would disconnect repeat online copyright infringers, calling the basic premise unconstitutional. "Innocent until proven guilty" remains a central principle of French law, and it cannot be bypassed simply by creating a new nonjudicial authority.

Better known as the "three strikes" law, Cr?ation et Internet set up a High Authority in France that would oversee a graduated response program designed to curb online piracy. Rightsholders would investigate, submit complaints to the High Authority (called HADOPI, after its French acronym), and the Authority would take action. Warnings would be passed to ISPs, who would forward them to customers; after two such warnings, the subscriber could be disconnected and placed on a nationwide "no Internet" blacklist.

The law passed on its second attempt—the first was foiled by a few Socialists who staged a bit of parliamentary theater to vote down the bill. But the Sarkozy government would not be denied, and it got its way a few weeks later.

The law still had to pass muster before the Constitutional Council, however, and this was a potential problem. The graduated response program was nonjudicial, setting up a separate "administrative" authority, but it performed an essentially judicial function (not just warning and monitoring, but sanctioning). And the sanction proceedings had a presupposition of guilt; sure, there was an appeal mechanism, but the burden of proof was on the Internet user to show that she had not been uploading those Stephan Eicher tracks.

In its ruling, this was precisely the issue that the Council zeroed in upon, going all the way back to the French Revolution to stress the wrongheadedness of the HADOPI approach.

"Moreover, whereas under section nine of the Declaration of 1789, every man is presumed innocent until has has been proven guilty, it follows that in principle the legislature does not establish a presumption of guilt in criminal matters," wrote the Council. This basic principle applies "to any sanction in the nature of punishment, even if the legislature has left the decision to an authority that is nonjudicial in nature."

The court also made a strong statement about freedom of speech: "Freedom of expression and communication is so valuable that its exercise is a prerequisite for democracy and one of the guarantees of respect for other rights and freedoms and attacks on the exercise of this freedom must be necessary, appropriate and proportionate to the aim pursued."

Disconnection would appear to be a disproportionate penalty—a claim often made by MEPs at the European Parliament who have repeatedly voted to make such sanctions illegal unless overseen by a judge.

To call the decision a "bombshell" is to do a grave disservice to bombshells everywhere. The French law has been a showpiece for the recording industry's worldwide graduated response campaign, and it's been one of the toughtest such laws proposed anywhere. The Council's censure appears to mean that disconnections—a penalty that the industry says is essential—must be treated like court cases, not "you're probably guilty" administrative proceedings. That, of course, was precisely what such systems were set up to avoid, since suing individual file-swappers hasn't worked so well and costs unbelievable amounts of time and money.

With MEPs and its own Consitutional Council condemning the law, the Sarkozy government may need to drop its full-throated support for the approach found in Cr?ation et Internet—support that has been seen both on the national and European level. It could also mean the resignation of French Culture Minister Christine Albanel, who was responsible for pushing the bill through the National Assembly and who threatened to resign if it didn't pass. She will hold a press conference in Paris this afternoon to discuss the decision.

There was no grieving from open Internet groups like La Quadrature du Net, which posted its response in the form of a picture.