Friday, January 23, 2009

Proportionality back on the table for EU telecoms package

Monica Horten at Westminster University reports on a proposed amendment to the telecoms package.
"An amendment to the Telecoms Package which supports the principles established in the Bono report is back on the European Parliament agenda for the Telecoms Package trialogues.

This is Article 32(a) of the Universal Services Directive ( Amendment 166 to the Harbour report). The amendment sets out the principle that any sanctions on end users, and notably any restrictions on users rights to access content, applications and services, must be proportionate to the alleged ‘offence’ (full text below). It is an important amendment, given that elsewhere in the Universal Services Directive, there is language concerning restrictions on users access to content. And as long as the 'co-operation' amendment (Article 33 (2a) or Harbour report Amendment112) remains in, which would establish in the law a process for telecoms regulators to oversee joint programmes for copyright enforcement between ISPs and rights-holders, it is an essential safeguard for users' rights...

The wording parallels that of the Fjellner-Rocard amendment to the Bono report in April last year, which established the European Parliament’s position against graduated response, and specifically against termination of internet access as a sanction.

Amendment 166
Proposal for a directive – amending actArticle 1 - point 19 b (new)Directive 2002/22/ECArticle 32 a (new)
19b) The following Article 32a shall be added:
"Article 32a
Access to content, services and applications
Member States shall ensure that any restrictions to
users' rights to access content, services and
applications, if they are necessary, shall be
implemented by appropriate measures, in
accordance with the principles of proportionality,
effectiveness and dissuasiveness. These measures
shall not have the effect of hindering the
development of the information society, in
compliance with Directive 2000/31/EC, and shall not
conflict with citizens' fundamental rights, including
the right to privacy and the right to due process."

IP geeks will recall that the EU parliament has already passed amendment 166 once and it was quietly dropped by the Council of Ministers (for reasons unknown, though some commentators wondered whether it was an administrative error by officials). I would hope that proportionality would apply in the absence of amendment 166 anyway, though it is not a feature of modern IP law but the acceptance or otherwise, in the final telecoms package, of amendment 166 may prove a better indicator of the balance of the politics than of the law.

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