Details are now emerging of the Faustian pact by the European Parliament on Internet users rights.  It was agreed in a trialogue meeting between the rapporteurs Catherine Trautmann and Malcolm Harbour, and  the Council, last night.

 A new Recital and Amendment have replaced  Amendment 138, which is no longer there - in my opinion,  they have an entirely different meaning.   See below for an analysis .  NB this article has been amended on 1 May, with alternative analysis.

Catherine Trautmann and Malcolm Harbour, the two rapporteurs on the main Telecoms Package directives, have given in to the Council. The result is not good for Internet users, and will permit  blocking practices by network operators.   I have put below the new Recital and Article that Mrs Trautmann has agreed to replace Amendment 138. Emails have been forwarded around the European Parliament to say

a deal has been done on both directives. The text of Mrs Trautmann's directive is available and I will be uploading it shortly. The text of Mr Harbour's report is not yet available, but it is my understanding that it will be similar to  the what I reported previously, at least in respect of the reversal of users rights amendment 166 into one that supports blocking by ISPs. 

Questions are also being raised about the proecdural aspects of Mrs Trautmann's handling of the directive, and in particular, the replacement of Amendment 138 after her committee gave her such a big mandate to retain the original text.

Amendment 138 

The original amendment   protects the right to freedom of expression on the Internet, by saying that no restriction - that is sanction - may be applied without a court ruling. It has gained political significance because it makes a statement against the French government's plans for 3-strikes measures.

It is addressed to the national regulators, meaning that Ofcom, or its equivalent in other EU countries, would be required to oversee that it was obeyed.

 The new amendment is weak, and if anything it seems to protect the position of governmens which want to introduce graduated response measures or other measures sucu as the UK wants to do ( see the Digital Britain Rights Agency proposal) which could include protocol blocking, using network technology to slow the speed of a user's connection or suspend the service. 

Human Rights Charters

The original version of Amendment 138 relies on the Charter of fundamental rights

Of the European Union. It refers to Article 11, which establishes a right to receive and impart iodeas and information without interference by government, and irrespective of geographic borders. Receive and impart in the digital environment would imply the right to up and download to and from the Internet.

The new Recital and Article rely on the  Convention for the Protection of Human Rights and Fundamental Freedoms. This also states the right to freedom of expression, however, it does say that it may be restricted, but it does also say that such restrictions must be prescribed by law, and should pursue a legitimate aim in a democratic society. However, it also does say that one of those legitimate aims may be the protection of the rights of others. This expression ‘the rights of others' is used by the rights-holders in the content industries, to refer to copyright and related rights.

In the new Article, there is a reference to Article 6 of the Convention, and the ‘tribunal' should act in accordance with Article 6 of the Convention. As far as I can see, this Article only refers to the right to due process under criminal prosecutions. The point of graduated response measures is that they are civil sanctions, applied for small infringements, which do not attract a criminal penalty. So the use of Article 6 of the ECHR would seem to be inappropriate, but I am happy to take feedback from the lawyers on this.

So could this be the catch.

Regulatory responsibility

The original Amendment 138 explicitly makes national regulators responsible for ensuring that users cannot be restricted in any manner without a court order. That means the regulator will have to a duty of care towards users. This interpretation is possible because Amendment 138 was situated in the part of the law which talks about the duties of the regulator and in particular, their duty to ‘protect European citizens'. Mrs Trautmann's new Article has been moved to sit within Article 1, which outlines the overal scope of the directive, but says nothing else substantive.

Principle v recognition

Amendment 138 establishes a principle that users rights on the Internet must be respected. The new Recital  only ‘recognises '  the rights, and a Recital is only for guidance. This weakened approach, refusing to acknowledge users rights, is consistent with all of the changes to the Telecoms Package that have been made by the council, and implemented by Mrs Trautmann and Mr Harbour.

Judicial authority v independent and impartial tribunal

This difference is key for the French position. Judicial authority makes the Hadopi illegal, and this is very clear from the beginning. The ‘independent and impartial tribunal' may be argued over in a court of law - and someone would have to take the French government to court to prove it. In the interim time period, the French government could implement the Hadopi.

La Quadrature du Net have issued a press release saying that the change is significant from a French viewpoint. It still opposes the Hadopi, however, someone would need to take the French Government to the European court in order to get an order to prevent the Hadopi from going ahead. This is because it places the onus on the opposition to demonstrate that the Hadopi is not 'an independent and impartial tribunal'

Commission consultation

I am sceptical of relying on a consultation. The Consultation for Creative Content online ran for two years, and did not produce a result. Having read a great many of the submissions, I can say that the input reflected the polarisation of views that exists where copyright and the Internet are concerned. The output, as far as it went, reflected only what the rights-holders had asked for - 3-strikes.

Here is Catherine Trautmann's "compromise" deal on the replacement of  Amendment 138 as agreed with the Council.  

Here is the text of Catherine Trautmann's new Recital and Article. MEPs should not be duped into thinking that it is a re-work or even a replacement for  Amendment 138. It is, as I hope I have explained above, something quite different. 

 New Recital

 New Article in a different place in the law:

1a)         Article 1(3a) shall be added:

"3a. Measures taken regarding end-users' access to or use of services and applications through electronic communications networks shall respect the fundamental rights and freedoms of natural persons, including in relation to privacy, freedom of expression and access to information and the right to a judgment by an independent and impartial tribunal established by law and acting in respect of due process in accordance with Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms."

(fa) in paragraph 4, point (g) shall be added:

"(g) promoting the ability of end-users to access and distribute information or

run applications and services of their choice;

(h) applying the principle that no restriction may be imposed on the

fundamental rights and freedoms of end-users, without a prior ruling by

the judicial authorities, notably in accordance with Article 11 of the

Charter of Fundamental Rights of the European Union on freedom of

expression and information, save when public security is threatened in

which case the ruling may be subsequent";

Point (h) is the original Amendment 138:

Authorisation directive, Annexe 1, point 19 

This amendment, as previously reported, could be read the operators are to provide end to end connectivity, with the caveat of the limitations which they place on them. National reguators have the power to verify the limitations, which provides no protection whatesoever for users. 

(h) The following point is added:
"19. Transparency obligations on public communications network providers
providing electronic communications services available to the public to
ensure end-to-end connectivity, in conformity with the objectives and
principles set out in Article 8 of Directive 2002/21/EC (Framework
Directive), disclosure regarding any conditions limiting access to and/or
use of services and applications where such conditions are allowed by
Member States in conformity with Community law, and, where
necessary and proportionate, access by national regulatory authorities to
such information needed to verify the accuracy of such disclosure.";

User choice  and competition law

The Council  has clearly instructed the Parliament toalter the Package so that competition law governs everything. However, competition law can not deal with blocking of content, and the types of problems that may arise for end-users and service providers. It is therefore inappropropriate. What is needed for users is regulation - the abiilty for the regulator to deal with  situations, as and when they occur, and to oversee any blocking behaviour, to ensure that it doesn't become a problem. 

 There is also an implied assumption behind these amendments, that it is ok for operators to package up content, and to offer special bundles of their own preferred content. This has not been made explicity, but it is evidently the thinking behind the changes. What's missing however, is a proper strategy that can be debated. For this reason, Mrs Trautmann should not have been pushed into  agreeing to these changes. 

Article  8.2 b
(b) ensuring that there is no distortion or restriction of competition in the
electronic communications sector, including for the transmission of
content;";

(fa) in paragraph 4, point (g) shall be added:
“(g) promoting the ability of end-users to access and distribute information or
run applications and services of their choice;

And the associated Recital: (18a)    A competitive market will provide users with a wide choice of content, applications and services. National regulatory authorities should promote users' ability to access and distribute information and to run applications and services.

And I am puzzled about the purpose of this Recital which has been added at the last minute: 

(36a)    Member States should allow for an appropriate period of public consultation before the adoption of specific measures to ensure that undertakings providing public communications networks or publicly available electronic communications services take appropriate technical and organisational measures to appropriately manage risk to security of networks and services or to ensure the integrity of their networks.

Here is Catherine Trautmann's final deal as agreed with the Council on Wednesday - the full text of the Amendments to all three directives. 

Further comment  on the replacement of Amendment 138

I have been sent the following comments by a reader and EU insider. The comments  do not change my opinion that this is a sell-out, because the limitations provisions which will permit Internet blocking, and the supporting articles and recitals,  remains in the Telecoms Package. However, the comments  they do provide an alternative legal  perspective on the replacement for amendment 138:

<< Obviously, the intention  of  the Council is to  weaken,  if not  to  remove, amendment 138/46.

In particular: - the change from the reference to the Charter of Fundamental Rights of the European Union (the so-called Nice Charter) to the Convention for the Protection of Fundamental Rights and Freedoms (an instrument of the Council of Europe, which as you know is not the Council of the European Union) is, in my opinion, positive.

First of all, the Nice Charter is non-binding - it would have been if the Constitutional Treaty had been ratified and it will be when/if the Lisbon Treaty will be ratified by all Member States. 

On the other hand, the Convention for the Protection of Fundamental Rghts and Freedoms is  binding on all the Member States of the EU, which have all ratified it .

Secondly, art. 6 of the Convention is not limited to criminal matters. The text itself refers to civil rights and obligations, and, as far as I know, the case-law of the European Court of Human Rights (which has jurisdiction over intepretation of the Convention) already stated that Article 6 para. 1 (art. 6-1) applies irrespective of the status of the parties, of the nature of the legislation which governs the manner in which the dispute is to be determined and of the character of the authority which has jurisdiction in the matter; it is enough that the outcome of the proceedings should be decisive for private rights and obligations (see, among many other authorities, the Allan Jacobsson v. Sweden judgment of 25 October 1989, Series A no. 163, p. 20, para. 72).

I'm sure the situation is more complex than that, but in my opinion civil matters are not excluded from the scope of the Convention.

-The move of the amendment to art. 1 is, in my opinion, not negative.

On a purely legal level, the issue at stake here is whether national legislation contravenes the provisions of Community law. The position of the amendment in the text does not, in my opinion, change anything from this point of view. In terms of interpretation of the text, I would say that a provision set forth in the first article of the Framework Directive has even a wider scope and strength than one put in a section dealing with the specific obligation of national regulatory authorities.

On a practical level, national regulatory authorities (with some exceptions) have been historically quite weak in enforcing compliance with telecom law and they are, in my opinion, even more prone to political capture than anything else.

- the change of language in the recital does not seem to me to change anything. In fact, the recital does not recognise any right, it recognises that the Internet is essential for education and for the practical exercise of freedom of expression and access to information. These rights already exist and they do not need to be reiterated. The recognition of the essential nature of the Internet in this area is, in my opinion, absolutely positive and a step forward that should not be underestimated!

- with regards to the procedural differences that you hint at in the section "Judicial authority v independent and impartial tribunal", I have to point out that even in the case of the original amendment 138/46, someone - i.e. the Commission - would have to take France to court, as a part of an infringement procedure to assert that the establishment of HADOPI and the latter's enforcement of the three-strikes policy would be a violation of Community law.

An alternative scenario might take place if a French court asks the European Court of First Instance or the European Court of  Justice  what would be the   correct  interpretation of the  term judicial authority and/or independent and impartial tribunal, possibly on the basis of a request by one of the parties of the case. This would be known as a preliminary ruling. In any case, it doesn't seem to me that the onus is significantly shifted in any of the two scenarios.>>

This article is licensed under a Creative Commons Attribution Non-commercial-Share Alike 2.5 UK:England and Wales License. http://creativecommons.org/licenses/by-nc-sa/2.0/uk/ It may be used for non-commercial purposes only, and the author's name should be attributed.  The correct attribution for this article is: Monica Horten (2009) Telecoms Package Internet sell-out now agreed,  iptegrity.com, 29 April, 2009. 

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