A legal analysis of the Telecoms Package, released today by the UK's Open Rights Group, says that the Package provides for a set of "crucial obligations' on Europe's telecoms companies and ISPs to "co-operate" with the copyright industries.
The analysis considers whether the Telecoms Package could provide a legal platform for either 3 strikes (graduated response) or filtering. It provides a breakdown, from a legal perspective, of the amendments in the Telecoms Package which relate to these types of measures.
In the summary, the authors say: "This is a crucial set of obligations, about to be imposed on all of Europe’s ISPs and telcos, which should be debated in the open, not passed under cover of stealth in the context of a vast and incomprehensible package of telecoms regulation. It seems, on careful legal examination by independent experts, more than possible that such a deliberate stealth exercise is indeed going on. When passed, these obligations will provide Europe level authority for France’s current “3 strikes” legislation, even though this has already been denounced as against fundamental rights by the European Parliament, when it was made clear to them what they were voting for or against."
On network filtering, they comment: "What seemed therefore to be a provision requiring
CSPs to act in the public good to protect networks from threats like viruses and hackers, could in actual fact potentially be interpreted in a way where it might also require CSPs to implement damaging technical sanctions against alleged (but not proven) filesharers."
On user safeguards, they say:
"Importantly, two amendments originally inserted by the EUP did provide protection against nonjudicial imposition of disconnection and other sanctions against alleged filesharers, in particular Art.32a of the Universal Service Directive (see para 35 of brief) and Art.8(4)(ga) of the Framework Directive (see para 28 ). However, both of these provisions were deleted by the CoM, and did not appear in the CoM’s proposed final text"