Telecoms Package vote deals a blow to the French 'riposte graduee' or '3-strikes' measures to enforce copyright on the Internet, and could mean a second reading
In an unexpected result, the European Parliament has expressed its opposition to 3-strikes for the second time this year. In the vote on the Telecoms Package today (24th September 2008) by the full plenary session, the Parliament has carried amendments protecting Internet users' fundamental rights. It has also removed a requirement for ISPs to enforce copyright, rejected an amendment giving rights-holders access to communications traffic data, and dropped without a vote, a proposal for "joint industry solutions" .
The result is a serious blow to the French government's wish for a wider implementation of its 'riposte graduee' measures, and is likely to lead to a second reading in the European Parliament - which will delay things until the Swedish Presidency takes over next year.
The key amendments in this regard were Amendment 166 to the Harbour report and Amendment 138 to the Trautmann report, which were both carried. They state that users' access may not be restricted in any way that infringes their fundamental rights, and (166) that any sanctions should be proportionate and (138) require a court order. They both reinforce the principle established on April 9th in the Bono report, that the Parliament is against cutting off people's Internet access as a sanction for copyright infringement. Cutting off Internet access was not explicitly in the Telecoms Package, but it did open the door to 3-strikes. These amendments close that door.
The vote in favour of these two amendments came as a surprise. Harbour Amendment 166 was tabled by the Swedish MEP Eva-Britt Svensson of the Nordic Green group. It was not online unless yesterday afternoon - less than 24 hours before the vote, due to a mix-up by the European Parliament clerks in the tabling service, which gave it very little time to gather support. And it did not have the backing of the rapporteur (was that a thumbs down that we saw?). All of this means that by rights it should have failed, and it speaks volumes for the democratic process that it succeeded.
Amendment 166 was carried by 346 to 312, with 6 abstentions. Almost all of the majority EPP Conservative group voted against, including the rapporteur, UK Conservative MEP Malcolm Harbour. The majority was formed by all the of the smaller groups - Socialist, Independent and Greens. UK MEPs who voted for it include London MEPs Syed Kamall and Baroness Sarah Ludford, and Baroness Nicholson of Winterbourne and Sharon Bowles (who represent my area). Robert Kilroy-Silk abstained.
Trautmann Amendment 138 was tabled by Guy Bono, and signed by 40 MEPs including Christofer Fjellner - both MEPs were behind the original anti-3-strikes amendment in the Bono report.
The final text of Amendment 138 was only known after the vote, due to an oral amendment by the rapporteur Catherine Trautmann. She clarified the text in an email circulated to MEPs after the vote. It reads:
ga) 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 where the ruling may be subsequent./*
Amendment 120 of the Trautmann report deleted a proposal that had been inserted by the College of Commissioners, and was one of two ‘copyright hooks’ in the Package. This was Annexe 1, point 19 of the Authorisation Directive, which would have meant that European governments could ask ISPs to enforce copyright.
Amendment 132 to the Trautmann report, was mysteriously withdrawn. This was the re-worked co-operation amendment tabled by Jacques Toubon and Ruth Hieronymi. This is also good news, as Amendment 132 was the one that contained the new concept of "joint industry solutions".
Amendment 177 of the Harbour report, asking for rights holders to get access to communications traffic data, was rejected.
The bad news is that Amendment 61 of the Trautmann report was carried. This amendment introduces the concept of lawful content at the framework level of telecoms law, and
links to the concept of "co-operation" between ISPs and rights holders as set out in the IMCO report.
It reads as follows (g) applying the principle that end-users should be able to access and distribute any lawful content and use any lawful applications and/or services of their choice and for this purpose contributing to the promotion of lawful content in accordance with Article 33 of Directive 2002/22/EC (Universal Service Directive)
Article 133 was the subject of another amendment, 112, in the IMCO report, which was also carried. The fact that these two amendments were carried may complicate the interpretation of the new law. Another amendment defining co-operation, (Harbour 192) was not carried, so it remains an indeterminate concept, open to argument by lobbyists and lawyers.
The Data Protection Supervisor's recommendation on IP addresses - calling for a further study to look into the status of the IP address as personal data - was carried.
However, there still remain a number of ill-defined aspects of the Telecoms Package in relation to content issues.
The revised Recital 12 c was passed, a watered-down version of the original, which asks ISPs to mass mail users with government 'public interest' messages. These are to be general messages only, and should go to all users. The references to ‘particular purposes’ – which left open the door for the 3-strikes warning to individuals accused of copyright infringement – have been deleted, as have the references to postage costs, which implied warnings by post or “strike two”.
The concept of "lawful" content remains in the texts, albeit with a definition. The definition though, seems to push the issue of copyright enforcement back to Member states. And in this respect, it raises a question for the lawyers. Does that mean that copyright enforcement is outside the competence of the EU? And if so, whither the Creative Content Online initiative?
Then there is the thorny issue of degradation and restriction of service. The Universal Access directive contains limitations on ISP liability for restricting access to content, and in respect of network management. A revised Recital 14b (Harbour) was carried, the meaning of which is unclear. Questions need to be asked at a policy level, about the position of ISPs who throttle specific applications and protocols – and whether they could be asked to do so as part of some “co-operation” procedure with rights-holders.
The next phase for the Telecoms Package is the European Council of Ministers meeting on 27th November.
All in all, it is clear that the scope of the Telecoms Package has been extended with the Parliament's amendments. The scope extention is in two areas which need to be addressed by separate policies at EU level. One is content and copyright enforcement; the other one is filtering. As far as I can see, there is no EU policy initiative to address filtering, (I'm happy to be corrected if I've missed it). And this is a gap that urgently needs to be addressed.
It's also clear that the bars in Brussels will be full tonight, with lobbyists from both sides recovering from weeks of hard work, and celebrating or commiserating!
Further reading: ORF (Austria) Ohrfeige für "Three Strikes Out"
Liberation.fr (France) Le parlement européen saborde la riposte graduée
Netzpolitik (Germany) PM zur ersten Lesung zum Telekom-Paket
BEUC (The European Consumers Organisation) A Good Call from MEPs (pdf)
The Local (Sweden's news in English) Sweden Welcomes EU Telecom Vote
AFP (Agence France Press) EU parliament waters down telecoms reforms
Le Monde Informatique (France) Christine Albanel sereine face au non des eurodéputés à la riposte graduée
For the full story of the Telecoms Package, see my book The Copyright Enforcement Enigma: Internet politics and the Telecoms Package