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

In what appears  to have been a political fight at the highest level of the EU, Justice Commissioner Viviane Reding has aimed her  handbag  squarely at  Trade Commissioner Karel deGucht. Mrs Reding walked out of the fortnightly meeting of Commissioners this morning to make  a press statement, which said in extremely strong language that she opposes ACTA, and any form of blocking of the Internet. By the looks of things, she forced a position which Mr DeGucht had not intended.

 On the agenda for the meeting was only that Mr De Gucht would report in the state of play with ACTA (anti-counterfeiting trade agreement).  There was no hint of a referral to the ECJ.

 The decision to make the referral appears to come from the Commission as a whole. But it seems that it  was not arrived at harmoniously. Mrs Reding’s statement contrasts markedly with another one from De Gucht.

Viviane  Reding’s statement  says that ‘the European Commission has therefore decided today to ask the European Court of Justice for a legal opinion…’ . Mrs Reding wants the ECJ opinion to ‘to clarify that the ACTA agreement and its implementation must be fully compatible with freedom of expression and freedom of the Internet.

  The strength of her statement  and the swift release of it suggests that she could have been behind the move to make the referral.

 A separate statement was issued by DG Trade, on behalf of Mr De Gucht. It looks like it was unplanned, and the intention and tone of voice  is quite different  from Mrs Reding. Mr De Gucht’s statement   suggests  that he recommended the referral, but then uses the words ‘we are  ‘planning’ to ask the ECJ, which would suggest that the final decision has not yet been taken.

 DeGucht’s says the Commission will ask the ECJ ‘whether ACTA is incompatible – in any way – with Europe’s fundamental rights and freedoms’. This is a different question from Mrs Reding's and it suggest that he is maintaining the old positioning of DG Trade, which after all, negotiated ACTA.

 De Gucht is seeking a different clarification from that which Mrs Reding seeks. He is seeking to defend the copyright industries. He still claims that ACTA will change nothing under EU law, it will not change the Internet, and it is about creating jobs. He maintains an assertion that the ACTA protests are based on ‘misinformation’.

 Mrs Reding, by contrast,  makes a robust defence of the free and open Internet:

 Copyright protection can never be a justification for eliminating freedom of   expression or freedom of information. That is why for me, blocking the   Internet is never an option. Instead, we need to find new, more modern   and more effective ways in Europe to protect artistic creations that take account of technological developments and the freedoms of the Internet.

 She issued a reminder of the EU Telecoms Package, Article 1.3a, which she calls the ‘Internet freedom provision’. According to Mrs Reding, Article 1.3a means that 3-strikes laws could never become part of European law. ( See my book The Copyright Enforcement Enigma  for the full story of Article 1.3a and Mrs Reding).

 The ECJ referral will have implications for member state governments, such as the UK, that want to bring in web blocking laws.

Alexander Alvaro, a vice-president of the European Parliament, issued a statement in support of the referral

 „Ich freue mich, dass die Kommission unserer Forderung nachgekommen ist, ACTA dem EuGH vorzulegen. Die Überprüfung durch den EuGH ist hilfreich, um rechtliche Konflikte zu identifizieren, sollten noch welche vorhanden sein“   which roughly translates as ‘ I am pleased that the Commission has followed our recommendation to send ACTA to the ECJ. The review by the ECJ will be helpful in identifying any legal conflicts as and where they exist’ (translation by me).

A referral to the ECJ is likely to mean that the European Parliament consent vote on ACTA will be deferred. Whenever it happens, that vote will be highly contentious and bitterly fought

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Here is the full text of the statement from EU Justice Commission  Viviane Reding today, on freedom of expression via the Internet, attempts to block websites, three strikes laws and ACTA:

For the European Union, freedom of expression and freedom of   information, regardless by which technological means and regardless of frontiers, are fundamental rights. They are enshrined in the EU's Charter of   Fundamental Rights1, which takes precedence over all EU legislation,   including international agreements concluded by the EU. The European  Union therefore stands for a freely accessible Internet and for freedom  of expression and freedom of information via the Internet.

2. Intellectual property is also a fundamental right recognised by the EU's  Charter of Fundamental Rights.2 It ensures that artistic creations by authors  are protected. However, this is not an absolute fundamental right. European  policy therefore should aim at mutually balancing the respect for both  fundamental rights, without calling into question their essence. Freedom of information and intellectual property rights must not be enemies; they should be partners!

3. Copyright protection can never be a justification for eliminating freedom of expression or freedom of information. That is why for me, blocking the Internet is never an option. Instead, we need to find new, more modern  and more effective ways in Europe to protect artistic creations that take  account of technological developments and the freedoms of the Internet.

The promotion of legal offers, including across borders, should become a  priority for policy-makers.

4. This is a position that I have previously defended in the debate on the EU Telecoms Package in 2009. Some politicians wanted to include in this legislation provisions that would have authorised a "three-strikes solution" to protect copyright. I opposed this at the time. In spite of significant political pressure3, I instead supported – in the name of the European Commission and in close alliance with the European Parliament – the inclusion of an "Internet freedom provision" in the final text of this

legislation.4 This "Internet freedom provision" represents a great victory for the rights and freedoms of European citizens. Under this provision, "three-strikes laws", which could cut off Internet access without a prior fair and impartial procedure or without effective and timely judicial review, will certainly not become part of European law.

5. This situation can and must not be changed by the ACTA agreement, which has been negotiated by the EU Presidency and is currently under public discussion in the European Parliament and in the national parliaments of the EU Member States. As I said, I am against all attempts to block Internet  websites. Even though the text of the ACTA agreement does not provide for new rules compared to today's legal situation in Europe, I understand that many people are worried about how ACTA would be implemented.

The European Commission has therefore decided today to ask the  European Court of Justice for a legal opinion to clarify that the ACTA  agreement and its implementation must be fully compatible with  freedom of expression and freedom of the Internet.

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The Copyright Enforcement Enigma tells the story of the 2009 Telecoms Package and how the copyright industries tried to hijack it.

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Iptegrity.com is the website of Dr Monica Horten, European expert on Internet policy and Visiting Fellow at the London School of Economics & Political Science. She is an independent expert on the Council of Europe Committee on Cross-border flow of Internet traffic and Internet freedom (MSI-INT). She was shortlisted for The Guardian Open Internet Poll 2012. Iptegrity  offers expert insights into Internet policy. Iptegrity has a core readership in the Brussels policy community, and has been cited in the media. Please acknowledge Iptegrity when you cite or link.  For more, see IP politics with integrity

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