3 strikes via the EU back door

One of Lilian Edward's students, Simon Bradshaw, at Sheffield University has been analysing the EU telecoms package and how it could facilitate an EU wide 3 strikes law. Outlaw summarises.

"

European law is introducing a 'three strikes and you're out' law for ISPs to disconnect illegal file sharers "under cover of stealth", according to legal experts. The EU's telecoms reform package could guarantee the legality of such schemes.

The content industry has lobbied to force internet service providers (ISPs) to disconnect users they suspect of engaging in copyright-infringing file-sharing after two warnings.

Digital rights activists have questioned the accuracy of the evidence gathered by industry against individuals and have said that the effects on a whole household of one user's actions are disproportionate.

Sheffield University professor of internet law Lilian Edwards and student Simon Bradshaw have analysed the documents that make up EU proposals for telecoms reform and have discovered that proposed new EU laws could pave the way for 'three strikes' schemes against the wishes of the European Parliament.

"This is a crucial set of obligations, about to be imposed on all of Europe’s ISPs and telcos, which should be debated in the open, not passed under cover of stealth in the context of a vast and incomprehensible package of telecoms regulation," they said in a report. "It seems, on careful legal examination by independent experts, more than possible that such a deliberate stealth exercise is indeed going on."

"When passed, these obligations will provide Europe-level authority for France’s current '3 strikes' legislation, even though this has already been denounced as against fundamental rights by the European Parliament, when it was made clear to them what they were voting for or against," they said."

Lilian has been able to get a copy of the latest version of the telecoms package (as of 12 November 2008). It seems that one of the two amendments quietly removed by the Council of Ministers after the EU parliament had inserted them to block a 3-strikes regime, has been re-introduced in the 12 November version of the document.

"47. Importantly, two amendments originally inserted by the EUP did provide protection against nonjudicial imposition of disconnection and other sanctions against alleged filesharers, in particular Art.32a of the Universal Service Directive (see para 35 of brief) and Art.8(4)(ga) of the Framework Directive (see para 28 ). However, both of these provisions were deleted by the CoM, and did not appear in the CoM’s proposed final text.

48. Somewhat unexpectedly, however, one of these “safeguard” provisions, Art 8(4) (ga) ,was in fact reinstated by the Commission in the latest version. Why both Amendments 166 and 138 were not so reinstated is unknown, but may relate to “horse trading” between the Commission, the Council of Ministers and the European Parliament to get the package passed during the Sarkozy Presidency of the EU. Whether (ga) will survive to the final version of the Telecoms Package is anyone’s guess, but it is clearly a key defence for civil liberties and against “3 strikes”, as it explicitly protects both the right to due process and the right to private life. This brief commends its reinclusion and suggests that Amendment 166 also be reinstated."

The paper emphasises in the final paragraph that it is providing a legal not a lobbyist perspective on the telecoms package.

"Good European law cannot be made when sectoral agendas are hidden within nested sets of amendments, obscure definitions by reference, and overly wide and vague terminology. The purpose of this brief has been to open up these obfuscated agendas to the light of day. The brief is based on the Telecoms Package state of play as at 12 November 2008. It will be updated as developments occur."

On her blog, Lilian says:

"The story is now on OUT Law and El Reg (and of course ORG).

Hugh Hancock has set up a Facebook group to help campaign- go join!

I'm also advised the email addresses of the Ministers to write to should you wish to are

Stephen Carter : mpst.carter@berr.gsi.gov.uk

Shiriti Vadera: mpst.vadera@berr.gsi.gov.uk"