A Council working document has dropped without explanation or even a formal deletion, the 'pro-Bono' amendment 166 (Article 32a) of the Harbour report, which reiterated the Parliament's opposition to 3-strikes measures. Other measures will impose costs on ISPs, and remove  oversight by the European commission and national Regulators to protect users in cases of content filtering.

The document, which emerged yesterday, comes from the European Council working party on Telecommunications and the Information Society.   It has  scrapped the pro-Bono amendment (166 numbered as Article 32a), which voted by a clear majority in the Parliament.  The Article is simply NOT in the document. There is no text to explain why - it is usual for text that is amended to be crossed out and an alternative put in its place. The other amendments from the Parliament are in the text.  One has to ask the question therefore, whether this is an   attempt by the Council to bury an inconvenient piece of law, and to go against the wishes of the elected Parliament. 

 So that it is not forgotten, here is the text which the Council wants to hide:

Amendment 166 Proposal for a directive – amending actArticle 1 - point 19 b (new)Directive 2002/22/ECArticle 32 a (new) 19b)

The following Article 32a shall be added: "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."

The deletion comes together with other changes to implement measures which make a 3-strikes regime easier. They scrap the

 reimbursement of ISPs for sending rights-holders messages to users,  and remove or weaken regulatory oversight by the European Commission and national regulators, and pave the way for filtering of Internet content.  It is notable that the French will be chairing the Working Group, as they hold the EU Presidency, and all of the changes would seem to go in favour of the French government's graduated response / 3 strikes plans.

At the same time,  the co-operation Amendment 112  - Article 33 (2a) put in by the Parliament's IMCO committee, remains. This Article  is designed to support the French graduated response measures ( I understand that ths fact is now being admitted by MEPs involved in the process).  I note that the UK, Irish, German, Austrian and Hungarian governments have a reserve on it.

However, unless they act on that reserve,  we have a law about to be passed, that will impose a graduated response system on all EU countries.

And with no checks and balances because they have been removed.  

Because the document has the appearance of the Council having decided to negotiate rather than send back a Common Position for a second reading. This would be, I believe, out line with the standard procedures in the EU legislature, but it would be  in line with the French Presidency's ambition to get the legislation passed - in a way that suits the graduated response measures - by December. 

You can download the Council document here

 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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