The Closing of the Net  "original and valuable"  Times Higher Education

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There was bad news for users and ISPs as the European Parliament's IMCO commitee voted today on Telecoms Package amendments which will  limit what users can do on the Internet. The vote signalled that the Package is again opening the door to 3-strikes measures: proposals related to users rights were either rejected or are being amended to remove rights,  and ISPs will not get reimbursed for sending warning messages.


The key text that was voted  will give broadband providers the right to limit users access to services and applications (Article 20.1 (b) and Article 21.3, "compromise" amendment CA5 ot the Unversal Services directive).

An amendment to give users a guaranteed right to a connection (AM 111 tabled by Swedish MEP Eva-Britt Svensson)  was rejected, and another, to safeguard users rights (Article 32a Am 72=146)  will be subject to trialogue negotiations where texts already circulating will deprive users of rights. A raft of other amendments which sought to protect  users rights by strengthening  the regulator's powers, were rejected. These included a number of changes propsoed by the shadow rapporteurs, and  several amendments from Eva-Britt Svensson

 In the absence of any definition in the draft law  of "services" or "applications", we must assume that the broadband provider may define it themselves.  A logical assumption is that peer-to-peer applications will be targetted, as well as voice-over-IP(VoIP). Skype already says that it is being blocked by

some operators in Europe, so this would not be an exaggerated interpretation.


 CA5  also contains bad news  for ISPs (Recital 24, at the end) , who will not get reimbursement for sending graduated response /3-strikes warnings. Instead, they will have to use the ‘normal' method of communicating with their users.

 Amendment 6=110 tabled jointly by the rapporteur Malcolm Harbour and the French pro-copyright MEP Jacques Toubon, removes a provision previously voted by the Parliament last September - that provision stated explicitly  that ISPs and network operators could not implement private sanctions against users. The original amendment was a safeguard against graduated response measures, drafted under the guidance of the European Data Protection Supervisor. The new Harbour-Toubon amendment paves the way for ISPs to take "preventive actions" against their users, without needing a court order. It is not clear whether the controversial amendment 138 in the Framework directive will make a difference to this measure. 


The vote was held by the European Parliament's Internal Market and Consumer Protection committee, and it concerned the Universal Services directive, which is intended to embed users rights in respect of telecommunications services. By default, it also includes Internet access. It is ironic that a committee with a brief on consumer protection could have voted such a text.

The text would seem to once again  open the door to graduated response  and private sanctions against Internet users - a door that the European Parliament had intended to close with the controversial Amendment 138. It additionally  puts forward a UK  agenda , which  moves the goalposts towards a total  restructuring of Internet services into a television-like business model, and seeks to cross-out users rights.


 Mr Harbour, speaking in the pre-vote session, let the cat out of the bag. In giving an example of where restrictions might be made, he  spoke of "broadband high capacity links which  may carry HDTV services that require a high quality link... (whereas) email is for example, tolerant of service restrictions".  Mr Harbour's statement is an indicator that the UK government proposals incorporate  television service delivery in the thinking that goes behind them.


The support for the UK government proposals by Jacques Toubon, is a further indicator that the proposals relate to copyright enforcement, which M. Toubon has been pressing for since the first reading in the European Parliament. 


Altogether there were four blocks  of amendments - from Mr Harbour, M. Toubon, Ms Svensson and the Shadow rapporteur. Mr Harbour accepted the one he jointly placed with M. Toubon, and otherwise, his 'compromises' were really text that can be traced to the Council documents in circulation. The Council documents  reinforce the UK and French government positions. 


The IMCO vote contradicts the vote last week on the Lambrinidis report, where fundamental freedoms on the Internet were upheld. 


The IMCO committee has voted in advance of a final agreement with the Council. Mr Harbour said he hopes to have his part of the Package wrapped up around Easter-time - that is in just under two weeks. He has not had sufficient "face-time" (his words, not mine) with the Council to be able to reach a final agreement. It does seem strange therefore, to have forced through the IMCO committee vote, when there are still matters - and very important matters related to users rights - at stake. 


Article 20.1

1. Member States shall ensure that, when subscribing to services providing connection

to a public communications network and/or publicly available electronic

communications services, consumers, and other end-users so requesting, have a right

to a contract with an undertaking or undertakings providing such connection and/or

services. The contract shall specify in a clear, comprehensive and easily accessible

form at least:


- information on any other conditions limiting access to and/or use of services

and applications, where such conditions are allowed under national law in

accordance with Community law,

- the minimum service quality levels offered, namely the time for the initial

connection and, where appropriate, other quality of service parameters, as

defined by the national regulatory authorities,

- information on any procedures put in place by the provider in order to

measure and shape traffic so as to avoid filling or overfilling a network link,

and on how these may impact on service quality,

Member States may also require that the contract include any information which may

be provided by the relevant public authorities for this purpose on the use of electronic

communications networks and services to engage in unlawful activities or to

disseminate harmful content, and on the means of protection against risks to personal

security, privacy and personal data, referred to in Article 21(4)(a) and relevant to the

service provided.



Article 21.3

3. Member States shall ensure that national regulatory authorities are able to oblige

undertakings providing public electronic communications network and/or publicly

available electronic communications services to inter alia:

(b) inform subscribers of any change to the conditions limiting access to

and/or use of services and applications, where such conditions are allowed

under national law in accordane with Community law,

(c) information on any procedures put in place by the provider in order to

measure and shape traffic so as to avoid filling or overfilling a network link,

and on how these may impact on service quality,


If deemed appropriate, national regulatory authorities may promote self- or

co-regulatory measures prior to imposing any obligation.

4. Member States may require that undertakings referred to in paragraph 3 distribute

public interest information free of charge to existing and new subscribers, where

appropriate, through the same means as those ordinarily used by undertakings for their

communications with subscribers and free of charge. In such a case, that information

shall be provided by the relevant public authorities in a standardised format and shall,

inter alia, cover the following topics:


(a) the most common uses of electronic communications services to engage in

unlawful activities or to disseminate harmful content, particularly where it

may prejudice respect for the rights and freedoms of others, including

infringements of copyright and related rights, and their legal consequences;

 NB: the text on 'filling the link' is highlighted because it is cut and pasted from the Wikipedia and as such  hardly inspires confidence in the law-making process..


CA5 Article 24

Without prejudice to Directive 2000/31/EC on

electronic commerce, undertakings should also, if required by Member States, provide

subscribers with public interest information produced by the relevant public

authorities, inter alia, on the most common acts of infringements and their legal

consequences. Dissemination of such information should however not create an

excessive burden on undertakings. The Member States should require this

dissemination by the means used by the undertakings in their ordinary course of

business for their communications with subscribers.


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."

NB: Article 32a, whcih protects users rights against unfair sanctions,  is to be re-negotiated with the Council. 

 For the full story of the Telecoms Package, see my book The Copyright Enforcement Enigma: Internet politics and the Telecoms Package







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