Thursday, October 09, 2008

EU reject three strikes approach with amendments to Telecoms package

From the excellent EDRI newsletter:

"The European Parliament voted the Telecoms Package
8 October, 2008

The Package of rules governing the Internet and telecoms sectors proposed by the European Commission in view of supporting competition and providing clearer information and a wider range of services to consumers was approved by the European Parliament on 24 September 2008, in the first reading. The measures that would have allowed a control on Internet users were rejected.

The package including four legislative proposals was proposed on 13 November 2007 and had in view the establishment of a new EU telecoms authority, the introduction of functional separation in order to boost competition, a review of radio-spectrum management and a range of consumer protection measures.

Following a strong pressure from the consumers, privacy groups and telecoms industry, the MEPs rejected the idea that ISPs should filter all downloads and punish the infringers of anti-piracy rules, being thus transformed into a sort of online police.

The key amendments in this respect were Amendment 166 to the Harbour report and Amendment 138 to the Trautmann report, both adopted by the EP. "They state that users' access may not be restricted in any way that infringes their fundamental rights, and (166) that any sanctions should be proportionate and (138) require a court order. They both reinforce the principle established on April 9th in the Bono report, that the Parliament is against cutting off people's Internet access as a sanction for copyright infringement. Cutting off Internet access was not explicitly in the Telecoms Package, but it did open the door to 3-strikes. These amendments close that door." as Monica Horten correctly points out.

The EP decided that personal data processing should not require the user's prior consent. Also, there was no clear decision on the issue of whether IP addresses should be considered as personal data.

However, the EP approved the application of a prior consent clause to software such as cookies, which are installed in the users' computers and which provide information on their behaviour to the companies having created them, such as search engines. Another amendment requires the telecom companies to inform the national telecom regulators if they suffered serious data security breaches, that might affect their users' privacy.

The Parliament's vote was welcomed by most interested parties being considered as a good step in the direction of privacy, the protection of personal data, and principles of proportionality and separation of powers.

The European consumers organisation, BEUC stated: "Today MEPs voted to reinforce consumer rights and competition in telecoms markets across Europe. We hope the Council will follow the same line towards improving and facilitating consumers' daily lives. Many consumers still suffer from problems with their telecom providers: from complicated information to very long-term contracts, not to mention difficulties in switching. Concretely, thanks to today's move, consumers could benefit from more transparent information about tariffs and conditions of contracts."

La Quadrature du Net, the group of citizens acting for individual rights and freedoms and supported by French as well as international NGOs, wanted to thank "all MEPs who have worked in this direction, and all citizens who mobilized en masse to alert their delegates on these issues. We'd like to thank particularly the MEPs who have been able to reconsider their positions as they became aware of the risks to the rights and freedoms of their fellow-citizens." However, the body still warns on some issues of concern particularly that of the danger that the adopted Amendment 138 may be withdrawn. Amendment 138 states that no restriction on the rights and freedoms of end users can be taken without prior decision of the judicial authority, only in cases when public safety is concerned.

There is strong support for the adoption of the telecoms package by the end of the mandate of the present Parliament, at the middle of 2009. The next step in this issue will be the next Telecoms Council which is planned for the end of November.

Parliament backs major telecoms, Internet overhaul (25.09.2008)

MEPs back altered telecoms reform (25.09.2008)

European Parliament votes against 3-strikes (24.09.2008)

Telecoms Package : European democracy's victory already threatened (26.09.2008)

EDRIgram: The telecom package debated by the European Parliament (10.09.2008)"


"Sarkozy snubbed by Barroso in the three strikes approach
8 October, 2008

Barroso, President of the European Commission has refused French President Sarkozy's request to withdraw Amendment 138 included in the Telecoms Package recently voted by the European Parliament.

Amendment 138 which basically reinstates the legal issue of the freedom to communicate of Internet users, reaffirming that only threats to public security can justify the restriction to the free circulation of information on the Internet without a court decision, was voted with a large majority by the MEPs, fact which largely displeased EU French presidency who has continuously pushed and pressed for the application of the three strike approach introduced by its "Création et Internet" draft bill.

Sarkozy sent a letter to Barroso asking for the withdrawal of the amendment which would force France to give up its draft law. If the Commission does not reject the amendment, France would be in the position to obtain the refusal of the entire Telecoms Package which would practically be impossible. Therefore, Sarkozy is trying to obtain the withdrawal of the amendment by the Council of Ministers during the meeting scheduled for 27 November, before the second reading of the European Parliament that will take place during the first term of 2009. "Sarkozy tries to force his way through in Council, and his close staff does not hide that they want to subsequently outstrip the European Parliament by having the French bill adopted in emergency procedure before the second reading on the Telecoms Package" says La Quadrature du Net.

But Mr. Barroso, president of the EC sent a non-receipt denial by reminding the French President that the amendment was voted with 573 pro votes against 74 and stating that the EC will "respect this democratic decision of the European Parliament" adding that the "amendment is a significant reminder of the legal principles that are inherent keys to the legal order of the European Union, especially as regards the citizens' fundamental rights".

The position was stranghtned by the European Commission spokesman for information society issues, Martin Selmayr that said: "The European Commission respects this democratic decision of the European Parliament. In our opinion this amendment is an important re-affirmation of the basic principles of the rule of law in the EU, in particular the fundamental rights of its citizens."

The European Commission has therefore accepted the amendment thus forcing France to accept the report. The Commission has invited France to discuss the issue at the Council of Ministers meeting where an agreement has to be reached between the Council and the EP in order to pass the Telecoms Package. As the Commission has no legislative power it can only act as negotiator between the two bodies. If France goes on with its plans to present its Creation et Internet draft law on 18 November, it might be under violation of a European provision in progress of being adopted.

"The French President seems to have too soon forgotten how the European Union institutions work by pretending to ignore the co-decision principle" stated MEP Guy Bono, co-author of the amendment.

On the other hand, the British Government which in July seemed ready to pursue a gradual response approach for p2p users now denies any such attempt. The British Prime Minister stated in a response to a petition asking him not to force ISPs to spy on their users for the purpose of monitoring copyrighted content. "Unfortunately, much of the media reports around this issue have been incorrect. There are no proposals to make ISPs liable for the content that travels across their networks. Nor are there proposals for ISPs to monitor customer activity for illegal downloading, or to enforce a '3 strikes' policy."

Letter from Sarkozy to Barrosso (only in French)

President Sarkozy requires the withdrawal of Amendment 138 (only in French, 4.10.2008)

Gradual response: Barroso said no to Nicolas Sarkozy (only in French, 6.10.2008)

UK Prime Minister Denies Three Strikes Proposal... After Europe Tossed It (5.10.2008)

Graduated response: Europe must resist Sarkozy's authoritarianism (6.10.2008)

Graduated Response : The Lesson (7.10.2008)

EDRIgram: French law on 'graduate response' opposed by ISOC Europe (10.09.2008)"

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