Digital Britain 3 strikes plans to bypass amendment 138?

The 1709 Copyright Blog and Monica Horten have spotted a flaw in the Department for Business Skills and Enterprise consultation on tackling illicit filesharing, triggered by the final Digital Britain report.

"UK government plans to restrict the Internet have become clear. And how it is using the Telecoms Package to launder policy through Brussels. Without Amendment 138, the Telecoms Package would offer no obstacle to Internet filtering, blocking peer-to-peer file-sharing, or restrictions on any other web-based service or application.

The UK government's peer-to-peer consultation has slipped on a virtual banana skin and in the process let its Internet restrictions plans jump right out of the bag.

The consultation has printed a version of Amendment 138 in the EU Telecoms Package using a wording hitherto unknown: it includes the words ‘or for other legitimate reasons' which would give governments the get-out clause they need to apply 3-strikes and

other sanctions to Internet users. This wording is not in the text that was adopted by the European Parliament on 6^th May. Neither is it familiar to me, and I have seen several of the unofficial proposals for re-writes.

Amendment 138 says that the fundamental right to freedom of expression on the Internet may not be restricted without a prior judicial ruling. It seeks to stop anti-filesharing measures such as 3-strikes /graduated response, and arguably also prevents network filtering being used to block websites and user connections without a judicial ruling. But the changed wording in the Consultation on legislation to address illicit peer-to-peer filesharing, run by the Department for Business, Innovation and Skills, implies that the judicial ruling would not be needed provided the reason for imposing the measure was 'legitimate', and so it gives the UK government, and governments all around the EU, the go-ahead to implement the kind of measures to restrict the Internet that are foreseen in the Telecoms Package Universal Services and Users rights directive (Harbour report).

The matter has been documented by the 1709 Copyright Blog ( which, incidentally, is written by lawyers). The 1709 Copyright Blog says that the consultation document could imply that the UK anti-filesharing plans are not out of synch with EU. The final text of Amendment 138 was known well before the June 16th publication date of the consultation, and that since it is such a political hot-potatoe, BIS should have proof-read the document and got it right. And it comments that Amendment 138 is a thorn in the UK government's side, because it would prevent them from requiring ISPs to cut off -filesharers or use ‘technical measures' to prevent them accessing file-sharing sites.

In other words, Amendment 138 will indeed ‘constrain policy options' as the UK's representative on COREPER, Andy Lebrecht, wrote in his briefing statement for the Minister , Lord Stephen Carter, presented in the House of Lords. "

(COERPER is the Permanent Representatives Committee responsible for preparing the work of the Council of the European Union).

If this really is the plan of some of the folk in BIS, it's potentially worse than even the French 3 strikes legisation which was ruled unconstitutional (at least the French had built in a semblance of judicial oversight).

The question that springs to mind is whether there really are machiavelian moves by music label friendly elements within the BIS to bypass amendment 138 of the European Parliament's telecoms package or whether this is down to bureaucratic errors on the part of the department. The BERR (as the BIS was then) officials that attended the OII's Musicians, fans and online copyright event in March 2008 gave every indication of understanding the complexities involved in attempting to regulate illicit file sharing but of course understanding at the level of the individual doesn't always translate into understanding at the level of the organisation. And it wouldn't be the first time the government interpreted EU legislation to suit themselves.