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

Political deals are being done which remove users rights to distribute Internet content,  impose conditions on Internet access and which could permit broadband providers to limit access to a specified list of websites or a premium paid-for Internet. Net neutrality, and millions of Internet businesses, are  under threat if this goes ahead.


***The next and final  trialogue is Tuesday 24  March ***


Behind closed doors, members of the European Parliament are negotiating away users rights to the Internet, in a bid to come to a quick political agreement on the Telecoms Package. It is happening in the discussions known as trialogues, which bring together the Parliament, the Council and the Commission, to try to agree a resolution on politically sensitive or technically difficult aspects of the Telecoms Package. An agreement  between the three institutions would wrap up the Package in the Second Reading. 

The European Parliament as an elected body,  is supposed  stand up for users rights, but  instead it is agreeing to limit rights  in the way that the Council, led by the UK and France, wants to do. They are trading changes in the revisions to telecoms law, and  users are the ones who are likely to  come off worst.

 Catherine Trautman (rapporteur on the Framework, Access and Authorisation directives) is understood to want  a deal that keeps  ‘lawful content'  in the Package, in return for agreeing to a text from the council on ‘no distortion of competition'. The Council wants a ‘compromise' which removes users right to distribute information. With any of these options, users rights are compromised. Mrs Trautmann's option will impose an onerous obligation on ISPs to monitor content. The ‘lawful content' amendment is referenced by several other articles in more than one directive, so it would really hook in this notion to the heart of what users  can and cannot do.

Malcolm  Harbour (rapporteur on the Universal Services directive)  is believed to be  tackling   the sensitive Internet issues by

downgrading them to a  ‘technical'  status, so that they will get through without discussion, and what the Council wants, goes. The current favoured wording appears to be "the conditions limiting access to and/or use of services and applications,"

Alexander  Alvaro , who retains the lead on the eprivacy directive, is apparently  using  an amendment that risks opening up users web surfing data to data mining, as bait for the Council to agree to a different change related to data breach notification.


What is most surprising is how  the Parliament is including the UK requirements in its texts. The Parliament is not supposed to work for the  Member States.   In the latest version of the Harbour report are the Council's amendments, drafted by the UK ( thought to be by Ofcom) which have cut and pasted text from the Wikipedia ( see my previous article UK filters in the Wikipedia amendments and see also the example I set out below).

There are two agendas here. The French government still wants support for graduated response, continuing its 18-month campaign to get EU law changed  for its benefit.  It is fighting ‘like a lion' against the inclusion of Amendment 138, which would mean its plan for the  Hadopi public authority to sanction Internet users, wouldn't work.

The UK government  is pushing for  changes in the law so that it can go ahead with its ‘segementation' plans for the Internet - allowing BT, Virgin and other ISPs to make limited content offers in a damaging plan intended to support the entertainment industries, but which will, in fact, be detrimental to millions of internet businesses. It has been campaigning in Brussels since Spring last year for these changes, but the real meaning of them is only now becoming evident.

 Mr Alvaro is pitched against the Council on two issues: traffic data processing (Article 6 of the eprivacy directive), and data breach notification. He is in addition, attempting to extend the scope of the eprivacy directive to information society services. It is understood that the Commission's position is that it wants to drop the traffic data processing amendment, whilst some lobbyists are campaigning for it to permit more than it currently does.

 The atmosphere at the negotiations in Brussels is said to be "tense" with Mrs Trautmann bristling during the discussions on the Framework directive.

 It's understood that an agreement is close on the pan-European regulator, which was an important sticking point. The new regulator is to be called BEREC (it was previously BERT or  GERT).  But there is no agreement yet in sight on the thorny matter of the  Commission veto (ARticle 7 and -7a of the Framework directive).

 However, the council is pushing hard to reduce the scope of the work carried out by the new European regulatory body, and it is not good news for users either. In the latest compromise document of 23 March, the Council is again pushing to reduce the regulator's power to intervene in cases of content blocking ( see the change to Article 22.3 on p206 of the Compromise document).

 This week  is the sixth trialogue. And as  far as I know, it is the last one before the two European Parliament committees vote. That in itself should set alarm bells ringing. How can the trialogues agree anything, when the Parliamentary committees have not voted on their own amendments. Surely, the Rapporteur does not yet  have a proper  mandate?



Framework directive Article 8

Under the European Parliament deal is this   text stays  in

European Parliament Art. 8.4 (fa) 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



if it  agrees to  this text:

Council:Art. 8.2 (b) ensuring that there is no distortion

or restriction of competition in the

electronic communications sector, with

particular attention to the provision of

wholesale services,


instead of this text:

(b) ensuring that there is no

distortion or restriction of competition

in the electronic communications sector,

in particular for the delivery of and

access to content and services across all



The alternative is you get this text: ( which removes users right to distribute information - a fundamental right under EU law).


Council Art 8.4 (g) applying the principle that endusers

should be able to access and

distribute information or run

applications and services of their choice.


Art 9.1 Access directive:

This one is about interconnection of networks. If they can simply declare what they restrict, with no accountability, then the whole economics of the Internet begin to break down.


European Parliament

restrictions on

access to services and applications, traffic

management policies,



including traffic management policies,


Council compromise

 conditions for supply and use

including any limitations on access to

services and applications, where allowed

by national law, that are in place for

traffic management purposes policies,

terms and conditions


Universal Services Directive   23 March 2009

How the UK government is trying to get  its amendments into the Universal Services directive via the Council.


Article 20.1 (b)

European Parliament:

- information on the provider's traffic

management policies any other

limitations regarding access to and/or

use of services and applications, where

allowed under national law,



- information on any other conditions

limiting access to and/or use of services

and applications, where such conditions

are allowed under national law.


UK amendments:

"information on any limitations imposed by the undertaking, where

allowed under national law, regarding a subscriber´s ability tothe

conditions regarding access to and/or, useor run applications andof

services and applications, including information on any traffic

management policies and on how these may impact on the delivery of the



UK wikipedia amendments

-This attempt at defining traffic management  is simply trying to pull the wool over our eyes or else  it  indicates that the Council doesn't understand traffic mangagement, because the Wikipedia entry that it is taken from is about ‘bandwidth management' which is not the same thing. Bandwidth management  is one element of traffic management, but to use a military metaphor, it is  like the maintenance unit, compared with the heavy artillery division. Bandwidth management does indeed manage the flow of the data traffic, whether on a network link or across an entire network.   Traffic management systems do so too, but they  can additionally prioritise, degrade, and block in real time, according to a predefined set of rules, which may be set as narrowly as to have different rules for each subscriber.In other words, bandwidth management simply makes sure that all the data gets to its desintation. Traffic management systems have the power to censor.

Council: Art 20.1  b

- information on any procedures put in

place by the provider in order to

measure and control traffic so as to

avoid filling or overfilling a network

link, and on how these may impact on

service quality,


Council: Art 21.3

(ba) information on any procedures put

in place by the provider in order to

measure and control traffic so as to

avoid filling or overfilling a network

link, and on how these may impact on

service quality,


The text from a page about bandwidth management in Wikipedia :


bandwidth management is the process of measuring and controlling the communications (traffic, packets) on a network link, to avoid filling the link to capacity or overfilling the link, which would result in network congestion and poor performance.




Article 22.3 Universal Services directive


The Commission may, having examined

such requirements and consulted the

Body of European Regulators in

Telecom (BERT), adopt technical

implementing measuresin that regard if

it considers that the requirements may

create a barrier to the internal market.

Those measures designed to amend nonessential

elements of this Directive by

supplementing it shall be adopted in

accordance with the regulatory

procedure with scrutiny referred to in

Article 37(2). (AM 53)


Council: The difference is that giving  guidelines is much weaker than technical implementing measures, and there is no need for them to be followed. This means weaker protection for users.

The Commission may, having examined

such requirements and consulted the

GERT adopt guidelines in that regard if

it considers that the requirements may


 For the full story of the Telecoms Package, see my book The Copyright Enforcement Enigma: Internet politics and the Telecoms Package


Please credit Monica Horten of if you quote the material in this article. 








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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'...a must read for those interested in knowing in depth about copyright enforcement and Internet.' -Journal of Intellectual Property Rights.  

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Don't miss Iptegrity!  RSS/ Bookmark 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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