Back in July, Pangloss readers were alerted to the stealth tactics surrounding the European revision of the Telecoms Package: a vast programme of EC law reform involving five Directives and primarily to do with regulation of the telecoms framework (duh) and nothing to do with content regulation or copyright - allegedly.
However as I reported then, there was serious concern (raised by La Quadrature de Net and Monica Horten at IPIntegrity) that some interest groups (in the main, it seems, the French Sarkozy government, and the global content industry lobby) were using this complex law reform exercise as a Trojan horse to pass through some fairly bland looking proposals, which when looked at more closely proved to lay what might well be a framework for European legitimisation of Sarkozy's "3 strikes and you're out law".
This law - whose basic idea is that alleged repeat filesharers should be summarily disconnected from the Internet without the intervention or supervision of the courts, on the say so of the content industry - had already been rejected in principle by the European Parliament as a breach of due process and fundamental rights such as privacy and freedom of expression.
As a result of publicity and a write in campaign to MEPs, these issues became better known, and safeguards were inserted into the Telecoms Package at the European Parliament reading stage. However these were subsequently removed (with little or no) publicity in the leaked Council of Ministers proposed amended version. Opaque waters were further muddied when a week or so ago the Commission came back with their (official) proposed version, which attempted to address some , but not all, of the worriesome issues in the Package. At this point I was asked, along with trainee barrister, blogger and IT law expert Simon Bradshaw, to have a look and say just what there was (if anything) still to worry about in the Telecoms Package as of right now, since its level of incomprehensibility had already reached beyond 11 on a scale of 1 to 10, for anyone except trained combat Internet lawyers (and we were struggling too:-).
After much burning of midnight oil and pixels, these are our conclusions. We hope they are useful to all participants in the European democracy and legislative process; in particular we hope they inform both the public and the politicians during the current vital period when the future of the Telecoms Package and whether it will go to a second reading in the EUP are being decided behind closed doors.
Here is the top level summary; the whole report can be downloaded here.
"The central issue discussed here relates to the current state of the Telecoms Package and
the extent to which it allows or does not allow (or requires, or does not require) the
disconnection of alleged filesharers from the Internet, without the involvement of courts to
assess the evidence for the possibility of error, and to provide protection for due process and
fundamental rights . It is indubitable that the Telecoms Package also provides many important
consumer friendly guarantees, but these are not the topic of this brief.
In particular, we wanted to find out if the Telecoms Package, at its latest stage, still provides a potential guarantee of legality for the “3 strikes and you’re out” legislation currently being implemented in France and of interest in some other member states such as, notably, the UK. The key parts of the argument above have been emboldened.
On the basis of our analysis it is clear that the package does, or at least can, provide a
mandatory basis for the “warnings” part of a French-style connection sanctions law (the
“strikes”) (see para 12 of brief), and also potentially provides a means by which public CSPs
(ISPs and the like) can be compelled by the national regulator to work with (“promoting
cooperation”) rightsholders to implement a disconnection scheme (the “you’re out” – see para
19 of brief). Wording in various places of the latest version seems to confirm that this “cooperation” is a more extensive obligation than simply providing copyright related
public interest information.
This is a crucial set of obligations, about to be imposed on all of Europe’s ISPs and telcos,
which should be debated in the open, not passed under cover of stealth in the context of a
vast and incomprehensible package of telecoms regulation. It seems, on careful legal
examination by independent experts, more than possible that such a deliberate stealth
exercise is indeed going on. When passed, these obligations will provide Europelevel
authority for France’s current “3 strikes” legislation, even though this has already been
denounced as against fundamental rights by the European Parliament, when it was made
clear to them what they were voting for or against.
Importantly, two amendments originally inserted by the EUP did provide protection against
nonjudicial imposition of disconnection and other sanctions against alleged filesharers,
in particular Art.32a of the Universal Service Directive (see para 35 of brief) and Art.8(4)(ga) of
the Framework Directive (see para 28 ). However, both of these provisions were deleted by
the CoM, and did not appear in the CoM’s proposed final text.
Somewhat unexpectedly, however, one of these “safeguard” provisions, Art 8(4) (ga) ,was in
fact reinstated by the Commission in the latest version. Why both Amendments 166 and 138
were not so reinstated is unknown, but may relate to “horse trading” between the Commission,
the Council of Ministers and the European Parliament to get the package passed during the
Sarkozy Presidency of the EU. Whether (ga) will survive to the final version of the Telecoms
Package is anyone’s guess, but it is clearly a key defence for civil liberties and against “3
strikes”, as it explicitly protects both the right to due process and the right to private life. This
brief commends its re-inclusion and suggests that Amendment 166 also be reinstated...
...Finally we reiterate that this brief has been prepared to give a legal, rather than a lobbying,
perspective upon the telecoms package. Good European law cannot be made when sectoral
agendas are hidden within nested sets of amendments, obscure definitions by reference, and
overly wide and vague terminology. The purpose of this brief has been to open up these
obfuscated agendas to the light of day. The brief is based on the Telecoms Package state of
play as at 12 November 2008. It will be updated as developments occur. "
Finally, thanks for help with this relating to European policy and process from the ever-helpful Judith Rauhofer, Research Fellow at UCLAN.
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