Friday, October 24, 2008

Will Telecoms package accomodate EU-wide 3 strikes rule?

According to the good folk at EDRI the telecoms package recently passed by the EU parliament retains worrying provisions potentially facilitating the introduction of a 3-strikes law on a European scale. German MEP, Ruth Hieronymi, who was instrumental in blocking amendment 132 which clearly opposed a 3 strikes regime, has stated publicly that she believes the telecoms package directive, as passed, now contains the legal framework for setting up an EU 3 strikes law or as the lobbyists like to call it the "graduated response" approach.

"In an attempt to influence the German government's position, a seminar, "on the development of Creative content online" was organized by the French embassy in Berlin with the title "Can the Olivennes agreement set the course for the digital future?". During the seminar, German MEP Ruth Hieronymi clearly stated that co-operation amendment 112 of the Harbour report in the Telecoms Package provided the basis for the graduated response in EU law. "I am absolutely convinced, that the legal framework is there, to fashion a model like Olivennes that is compatible with European law" she stated in relation to the Telecoms Package.

The MEP also claimed personal responsibility for the withdrawal of Amendment 132 in the Framework directive which opposed graduated response, and was in direct conflict with Amendment 112 and the other pro-Olivennes measures.

Hieronymi's comments show that the attempt to insert graduated response and copyright enforcement measures into the Harbour report was deliberate. Which means that a vote for the directive as it is now, will clearly be a vote for graduated response. Unless there is no opposition form the governments having shown some reserves, the law imposing the graduated response will be passed to all EU countries by December, as the Council seems to have decided to negotiate the document and not send it back to the EP for a second reading.

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)"

Ms Hieronymi's claims that there was deliberate intent to include a 3 strikes framework in the telecoms directive directly contradict the assurances to the contrary I was given by several of my own MEPs. Those assurances were largely based on statements by Conservative MEP Malcolm Harbour, the rapporteur for the directive, that there was nothing about copyright enforcement or 3-stikes in his report underpinning the directive.

Mr Harbour and Ms Hieronymi may have to agree to disagree on the existence or otherwise of the intent underlying the directive in respect of copyright but one thing that appears to be clear is that the amendment to the telecoms package supported by the EU parliament which could have been read to block a 3 strikes regime has apparently been quietly removed by the EU Council. The European Council working party on Telecommunications and the Information Society has dropped the following amendment to the telecoms package (amendment 166, also labeled article 32a):

"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." "

The deletion is not even noted as is normal when such changes are made and no explanation is provided. With the Council apparently planning to pass the package now without returning to the EU parliament for a second reading it makes you wonder whether the parliament has any real function other than swallowing significant chunks of our tax revenues.

As to the 3 strikes regime I happened to be giving a talk on IP to OU colleagues yesterday and briefly mentioned the dangers again, as well as Lilian Edward's perpective on the Promusicae dicta from the European Court of Justice in January (regular readers will recogise the following as mainly copied from my notes on Lilian's presentation on at the OII's Musicians, fans and online copyright event at LSE in March this year):

"If we withdraw access to the Net from a large number of people in the UK (and 6 million plus are considered to be engaged in copyright infringement via the Net in the UK alone), should such withdrawal be by a closed industry procedure? Practical considerations mean that for the scheme to be workable on the part of the ISPs it would have to be automated and internal to the ISPs. No impartial process or judge would be overseeing it (as is happening in the French case). But we have to realise that ISPs are not Net police but service providers. They are not set up for policing. In court copyright infringement would have to be increased to the standard of a criminal infringement because withdrawal of access to the Internet feels very much like a criminal sanction.

In addition there is a presumption of guilt not innocence. The person linked to the IP address identified as an alleged source of infringement is automatically assumed to be guilty and has the burden of proving their innocence. There are a large number of ways that people might be wrongly accused - there are a lot of reasons why the person linked to the IP address - i.e. the formal ISP subscriber - might not be the infringer. It could be other family members or their friends or others accessing open wireless access points (wifi piggybacking), or trojans enabling remote control of that machine.

There should be an absolute commitment to starting with a presumption of innocence rather than a presumption of guilt by an industry with an economic stake in an outcome whereby someone is held responsible.

Will legal access be available to the accused? Or does someone have to be cut off first? Article 6.1 of the European Convention on Human Rights (ECHR) guarantees the right to due process. Is access to the Net itself a basic human right? Article 36 of the ECHR would suggest so or at least it is very close. The French scheme is better than an unmediated scheme since it allows for the access to an independent tribunal with the oversight of a judge.

Even if we could overcome these problems, there is a serious legal question about whether a 3 strikes law is a proportionate response to the specific problem. According to the recent Promusicae v Telefónica case in the European Court of Justice the rights of the music labels to protect their copyrights must be balanced with the civil rights of users of the Net. Having access to the Net is now a fundamental part of nearly everyone's life in the developed world and it relates to basic rights to:

• free expression
• freedom of association
• education
• and employment

and the ECHR and every other serious international charter of rights says that if a law is not proportionate it is not legal.

Even with the legitimate aim of defending or protecting copyrights, the ECJ clearly instructed member state governments that they are not to endanger human rights or proportionality. Professor Lilian Edwards of Sheffield University actually thinks that this part of the decision was a clear dicta from the court aimed directly at the kind of 3 strikes notice and disconnect schemes the French have implemented and others are considering, including it seems the EU Council where there have been sustained efforts to sneak the measure through, hidden in the massively complex telecoms package directive."

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