Friday, October 23, 2009

Oh dear

Via b2fxxx. comes the news that the Council has indeed shoved through the deeply unsatisfactory compromise version of Amendment 138 to the Telecoms Package over the , well not quite dead but fatally wounded body of the European Parliament. Sez Ray:

"La Quadrature du Net are unhappy with the revised version of amendment 138 to the telecoms package agreed by the Council and representatives of the EU parliament.
"Yesterday, representatives of the European Parliament, an institution that ordinarily prides itself for protecting human rights at home and abroad, decided to surrender to the pressure exerted by Member States. The Parliament gave up on amendment 138, a provision adopted on two occasions by an 88% majority of the plenary assembly, and which aims at protecting citizens' freedom in the online world. Instead of ensuring that no restriction to Internet access would be imposed without the prior ruling of a judge, amendment 138 will instead be replaced by a weak provision1, that does not carry any new important safeguard for citizen's freedoms.
The European Parliament, who regularly boasts itself about its credentials in the field of human rights, has endorsed the false idea that it had no power in protecting their constituents' rights under current rules. This decision was taken consciously by rapporteur Catherine Trautmann, in order not to risk a confrontation with the Council of EU and to quickly finish with the Telecoms Package. She, along with the rest of the Parliament delegation deliberately ignored existing texts and case law pointing to the fact that it had the competence to adopt the core principles of amendment 1382. They didn't even try to reword the original amendment in order to preserve its initial objective."

Thanks Ray for the update. This is depressing but largely expected. Sigh.

The new text reads as follows, according to La Quadrature:

"3a. Measures taken by Member States regarding end-users' access to or use of services and applications through electronic communications networks shall respect the fundamental rights and freedoms of natural persons, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and general principles of Community law.

Any such measures liable to restrict those fundamental rights or freedoms may only be taken in exceptional circumstances and imposed if they are necessary, appopriate and proportionate within a democratic society, and shall be subject to adequate procedural safeguards in conformity with the European Convention for the Protection of Human Rights and Fundamental Freedoms and with general principles of Community law, including effective judicial protection and due process. In particular, any measures may only be adopted as a result of a prior, fair and impartial procedure ensuring inter alia that the principle of presumption of innocence and the right to be heard of the person or persons concerned be fully respected. Furthermore, the right to an effective and timely judicial review shall be guaranteed.

This shall not affect the competence of a Member State, in conformity with its own constitutional order and with fundamental rights, to establish a requirement of a judicial decision authorising the measures to be taken."

This is at least slightly better than one earlier version of the compromise amendment Pangloss saw (which may explain the cave) . But the sting in the tail is the last para. Clearly by implication for some member states , of a certain constitutional tradition (which, one wonders? could it include France? and perhaps the UK?), a "proper" judicial decision will not be necessary before disconnection, no matter how much flannel is in the previous para.

"Effective judicial review" at end para 2 also makes it clear that any right to a prior court order before disconnection has vanished, leaving only post factum appeal (which in light of consumer ignorance, and inertia, and the costs of proving someone messed up on IP identification is an almost meaningless remedy for the masses).

Oddly the Register today merely reports that the Telecoms package has to be settled before end year or fall entirely, which left six weeks to negotiate, and suggests

"The Council and Parliament are [still] in disagreement over a clause in a Commission-proposed reform package for telecoms regulation which would stop internet users being cut off for alleged file-sharing without a court's authority."

Can someone confirm the Quadrature de Net version of events?

EDIT: the all-knowing Monica Horten also seems to report confusion as to whether this text has actually been accepted.

EDIT 2: Surely there is a Downfall mashup out there about amendment 138 by now? This has to be the last days in the bunker..

No comments: