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

The latest agreement between the European Parliament and the Council reverses users rights in respect of the Internet, and confirms telcos right to block access at their discretion. Users  lose their  rights to digitally roam. Operators gain the  right to block them.

 

 

Malcolm Harbour, rapporteur for the Universal Services Directive in the Telecoms Package, has reversed out  users rights that were carried in a majority vote by the European Parliament last September. He proposes to replace Amendment 166 - Article 32(a) of the First Reading text, with a new text which states that telcos will not be prohibited from blocking users - see below. De facto, the new text means that telcos may block users, with immunity.

And it is the polar opposite of the original amendment that it is supposed to be replacing. Amendment 166 complements the

better known Amendment 138, and says that EU governments should ensure that user's rights to access and distribute material on the Internet are not unduly restricted, and that any such restriction should be proportionate, effective and dissuasive. This language reflects the so-called Bono report  of April 2008, where the European Parliament voted overwhelmingly for an amendment opposing graduated response and filtering.  Amendment 166 enshirines that principle in legislation.


Effectively, this back-room re-write reflects the lack of democratic process in the Telecoms Package. It means that users lose the rights that  they have had from the beginning of the Internet - rights which are underpinned by the  European Charter of Fundamental Rights. These are the rights to access and distribute content, the right to work and the right to trade.  Operators gain the positive  right to block, that they have never had before - and which wasn't quite so explicitly in the earlier drafts of the Telecoms Package. 

 

It is ironic that this is the directive which is supposed to protect citizens' rights, the new re-written  text writes out the reference to users rights to access and distribute content, services and applications. It does so three time, by removing the explicit statement of users rights to acces and distribute, and by removing the reference to the right to freedom of expression, and by the  reference to Article 8 of the Framework directive. The re-writes in Article 8 by the Framework directive rapporteur, Catherine  Trautmann,  remove any rights of user to access and distribute. Mrs Trautmann's re-write replaces fundamental rights with a mere 'ability', and also says that competition law should regulate the market  - the implication is that this sets the platform for Internet packaging. 

Moreover,  the re-write  of Amendment 166, not only gives operators the right to block, it is a more friendly provision for  member states who want  to introduce 3-strikes or similar measures.  I am struggling to think what else this phrase could be referring to:

"National measures regarding end-users' access to or use of services and applications

through electronic communications networks.  "  It says they should  have to "respect the fundamental rights and

freedoms of natural persons,'  which is very general, and a shift in terminology from 'ussers' to 'natural persons'. Users are defined in the telecoms framework to mean 'users of electronic communications systems' but 'natural persons' could include 'authors'. There are two versions  of the re-write in circulation. The version in the document that I have linked to below does NOT include the following words, which  I have spotted in a later version that is circulating: '  including in relation to privacy and due process" have been added. 

  Another point is that Mr Harbour's 're-write' removes the explicit requirements of the original to be 'proportionate, effective and dissuasive' .  These words mean that the sanction must match the offence, and not be overly-heavy. Cutting people of the Internet is deemed to be disproportionate. Therefore, in Mr Harbour's version, there is no requirement for member states to be proportionate. It pushes the door towards graduated response. Only the requirement for 'due process' if it is included, would push the door back again. 

It also removes the explicit reference to the e-commerce directive, which contains the 'mere conduit' provision, that network operators and ISPs carry data traffic but have no knowledge of the content.'Mere conduit' acts as a protection for users against filtering.

The "right to due process" in the context of the policy agenda for  this directive, is a direct reference to graduated response / 3-strikes, however, slipped in this way - I have been able to verify via documentation that this was a last-minute addition - it only pays lip-service to the requirement. The original Article 32(a)  was written in such a way that it was clear that covert  filtering ans three-strikes measures were not acceptable .

It is odd that the re-written Article 32(a)   has been re-positioned  in Article 1. In the first place, Article 1 explicitly sets out the scope of the directive as being Users Rights. The proposed Article  talks about what providers of services can do  - properly, it does not seem to  belong there at all.

The IMCO committee did not debate or scrutinise Mr Harbour's proposals - on 31st March, Mr Harbour was the only person to speak in relation to the driective's content. There was no opposition and one gets the impression that the MEPs either do not understand what the Telecoms Package is about - or they have been cowed into submission, in order to meet a deadline for agreement with the Council. 

 

Mr Harbour said at the meeting of his committee - known as IMCO - on 31 March, that he proposed to re-write Article 32(a) together with the Council. The Council - driven by the UK and French governments - has been pushing amendments to decerase users rights, in order to support the French Hadopi / 3-strikes law; and the UK's Digital Britain policy which proposes to use technical tools such as deep packet inspection to block and suspend users access (see Annexe B, section 4.6).

 

Mr Harbour cites the  so-called transparency measures in the directive, however, the measures in the draft are in no way sufficient to enable regulators to deal with the kind of blocking situations that are likely to happen.  The measures simply require the the information to be in the contract, meaning that operators could put it in the small print, and users would have no comeback.

 

The Framework directive has also been altered by its rapporteur, Catherine Trautmann, to back up the changes in the Universal Services directive. Effectively, it has been done such that  the whole telecoms framework is now drafted to be reliant on competition law to deal with blocking situations. I have been asking for the opinions of  lawyers on this matter, to check the position regarding competition law. I have been advised that it is equivalent  to doing nothing. 

 For example, T-Mobile blocking Skype as recently happened in Germany, where the operator was able to be totally dismissive of its users, and is quoted in the German media saying words to to the effect of  ‘ we put it in the contract'.

 

Mr Harbour certainly has made a sly move here, to  transform an amendment designed to protect users rights, into one that is more closely suited to the requirements of goverments who want graduated response and other controlling meausures.

The rapporteur has worked with the Council on a series of amendments which will have the effect of permitting the telcos to block Internet content, applications and services, as well as a number of other measures which, based on the analysis  that has been drawn to my attention* , are deemed to retain power for the incumbent telcos. You can read the full set of  changes to the Universal Services directive here.

 

The full, original Article 32(a) will be retabled by Swedish  MEP  Eva-Britt Svensson, who originally tabled it in the First Reading. 

 

 *written by Mike Kiely, a telecoms professional  who is campaigning for a better broadband service in Britain

Universal Services directive

Possible new Article 1(3)  (formerly Amendment 166/Art 32a)

 

Original Amendment 166

Article 32(a)

 

ORIGINAL TEXT FROM THE 2002 DIRECTIVE

Article 1

Scope and aims

1. Within the framework of Directive 2002/21/EC  (Framework Directive), this Directive concerns the provision of  electronic communications networks and services to end-users.   The aim is to ensure the availability throughout the   Community of good quality publicly available services through   effective competition and choice and to deal with

circumstances in which the needs of end-users are not   satisfactorily met by the market.

2. This Directive establishes the rights of end-users and the   corresponding obligations on undertakings providing publicly   available electronic communications networks and services.   With regard to ensuring provision of universal service within   an environment of open and competitive markets, this   Directive defines the minimum set of services of specified  quality to which all end-users have access, at an affordable   price in the light of specific national conditions, without

distorting competition. This Directive also sets out obligations  with regard to the provision of certain mandatory services  such as the retail provision of leased lines.

 

 

PROPOSED NEW ARTICLE 3

3. This Directive neither mandates nor prohibits conditions imposed by providers of

publicly available electronic communications and services, limiting users' access to

and/or use of services and applications, where allowed under national law and in

conformity with Community law, but does provide for information of such conditions.

National measures regarding end-users' access to or use of services and applications

through electronic communications networks shall respect the fundamental rights and

freedoms of natural persons, ( including in relation to privacy and due process**), and

shall be in accordance with the objectives and principles set out in Article 8 of

Directive 2002/21/EC.

 **this phrase incorporating due process and privacy, is found in a later version of the re-written amendment. It is not clear which version is actually the final proposal.  

 

ARTICLE 32(a)   ALREADY CARRIED BY THE EUROPEAN PARLIAMENT

Member States shall ensure that any restrictions  to the rights of users to access content, services,  and applications, if such restrictions 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 the fundamental rights  of citizens,   inuding the right to privacy, the  right to freedom of expression and the right to

due process.

 

 

 

See also the alternative  Citizen's Rights Amendments and the defence of the original Amendment 166 - as well as Amendment 138

 

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

This article is licensed under a Creative Commons Attribution Non-commercial-Share Alike 2.5 UK:England and Wales License. http://creativecommons.org/licenses/by-nc-sa/2.0/uk/ It may be used for non-commercial purposes only, and the author's name should be attributed. The correct attribution for this article is: Monica Horten (2009) Harbour's 166 re-write reverses users rights, iptegrity.com, 26 April 2009. 

 

 

 

 

 

 

 

 

 

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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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