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

The fight to defend the Internet has been taken up by the three smaller parties in the European Parliament - Greens, Independents and Left groups. They have tabled a group of amendments to the Telecoms Package -  dubbed the Citizen's Rights Amendments - which guarantee users rights of access to Internet services. They provide an antidote to the Internet-limiting "compromise"  by the Parliament and  will have the effect of keeping the Internet open for users and business. And the reinforce the position taken in the Bono and Lambrinidis votes. 

 

A bundle of amendments designed to put the  user back into the heart  of the Telecoms Package has been tabled for the plenary vote next Wednesday by the three smaller groups in the European Parliament.  Dubbed the  Citizens rights amendments, (see below for links)  they provide  a formal guarantee of access for Internet users for the first time in EU law, plus  provisions which empower national regulators to oversee the users interests in Internet access provision.  They were tabled by the GUE/NGL (left) group, the Ind/Dem group (Independent), and (most of them) byt the Green group.

 The big problem with the  so-called "compromise" agreed by Parliament's rapporteurs with the Council, is that it is drafted to meet the network operator's perceived interests, and not users. Contrary to the rapporteurs' claims, it  actually bears the risk of reducing  

citizens rights and    restricting freedom of speech. If this compromise is passed, network operators will legally be able to block, limit or restrict users access to content, services and applications, and there is little that users or business can do. Iit would mean that Europe, which takes a pride in having the best protection for its citizens, would have worse protection than America, where Internet policy is governed by a set of principles that protect citizens interests.   

 Throughout the trialogue discussions, citizen's rights have been taken away piece by piece, and the network operator's demands - fed in by the Council - have been  incorporated by the Parliament's two rapporteurs. I have tracked the changes in each version of the draft law, and am able to verify that this is the case. Indeed, business users too, will find their rights to trade in a free and open e-commerce market have been trodden on.

 

Why guarantees for Internet users rights

In 2009, two factors combine to say that Internet users rights should be guaranteed.

 

The first factor is that  the economic crisis means that Europe more than ever, needs innovation and creativity. And  innovation and creativity, nowadays, mostly depend  on  access to and distribution of information. There is, therefore,  a crucial requirement for the EU  to provide guarantees of the right to freedom of expression. In the digital era, this means the right to access and distribute content, applications and services on the Internet.

 

The second factor is that  the technology now in the hands of the network operators has a power never known before, to electronically restrict or limit users access. This is the so-called traffic management technology.

 

We are already seeing cases where operators are using their  power to limit users in a way that is intended to support the operator's commercial interests,  and is arguably opposed to the interests of the user. For example, the case of T-Mobile blocking Skype, or the British    operators blocking peer-to-peer applications. These cases are just the beginning, harbingers  of what is to come, if MEPs vote in favour of the so-called "compromise" to appease  the Council.  It does not take a lot of imagination to see what this kind of abuse of power could lead to, if left unregulated.

 

These guarantees are necessary because the "compromise" text of the Telecoms Package, permits blocking of this type. This is not denied either by the rapporteur. When you analyse the rapporteur's recommendations, it can bee seen how the ‘permission to block' has been deliberately built in to the package at all points where it needs to be. (Universal Services directive Article 1.3 (new), Recital 22, Article 20.1(b), Article 21.3,   Authorisation directive annex 1, point 19; Access directive Article 9.1).

 

A vote  in favour of these guarantees would be consistent with the European Parliament's position. Just over a month ago, on 25 March,  it was applauded widely for voting   against such blocking in the Lambrinidis report, point (v):  "to ensure that freedom of expression is not subject to  arbitrary restrictions from the public and/or private sphere and to avoid all legislative  or administrative measures that could have a "chilling effect" on all aspects of freedom of speech". It is therefore inexplicable why the Parliament is now gathering around to vote for blocking of  access to Internet services.

 

What guarantees are proposed?

This is what MEPs are being asked to consider, with the Citizens Rights Amendments, which provide a positive guarantee of access as well as reinstating Amendment 138 and 166, in their original forms, to implement the principle that users should be  safeguarded against unreasonable sanctions.

All three work together, giving users both a direct guarantee of their rights, as well as an undertaking that  direct sanctions must be applied by a court and not by the network operator or other private interests.  In particular, the amendment to Framework directive, Article 8.4 (g) implements a more  appropriate balance between the interests and rights of users, and the interests and rights of others. 

 

Implementing the guarantees and improved transparency

The best way to protect users and guarantee freedom of expression is through transparency. Now, the rapporteurs claim that they have put transparency measures into the Package. However, the so-called "compromise" that has been agreed has been written to support operators, who don't want a regulator watching what they block. It only puts in  half-measures, and very weak ones. The barrier for the operators is very low - they just have to tell  the users, and they can block.

 

Given the capability of the traffic management systems to electronically block, limit, or slow Internet traffic, and to do it without the users' knowledge, this is putting a tremendous power in the operators' hands. We are very much going to have to rely on their good-will and best behaviour.

 

And we should remember that we are not  just talking about entertainment, but we are talking about people's businesses, financial affairs, shopping, social lives and livelihoods.

Users need to know that there is a regulator empowered to act on their behalf, looking into what the operators are doing, and acting on their behalf to regulate.  That is what the Citizen's Rights amendment will do. They give the regulators the power to look into the network operators practices on behalf of users. And they give  the operators the right to manage congested traffic, but not to place discretionary blocks on people's access. 

 

 Removing copyright co-operation

Copyright enforcement is outside the scope of telecommunications framework law. It got in to the Telecoms Package  via an amendment written by  one of the French collecting societies.

 

The  Universal Services directive Article 33.3 and Recital 39, which set up a co-operation ‘mechanism'. In the wider policy arena, there is evidence as to what could be intended by such a mechanism. For example, in the UK Rights Agency consultation paper, such a ‘mechanism' is defined as ‘technical tools for preventing or reducing online copyright', a means of tackling civil infringement, and a means of protecting rights.  Graduated response to deal with copyright infringement, whilst not explicitly called for, is underpinned by the cooperation ‘mechanism' and by the ‘limitations' provision in end-user contracts. The contractual provision is in fact, the main requirement for implementing graduated response.

  These copyright enforcement mechanisms  represent  a  specific way that Internet users rights risk being limited. It would be more appropriate to discuss them in discreet policy forums and establish the best way to balance users rights and rights holder rights.

 

Removing the provisions in the Telecoms Package that relate to copyright and the cooperation mechanism,   will be in line with the European Parliament's previous positions taken in the First Reading (Amendments 138 and 166)  and in the Bono report of April 2008.

 

Read  Citizens Rights Amendments 

Here is the Citizens Rights Amendments as tabled by GUE/NGL (left) group, the Ind/Dem group (Independent), and (most of them) byt the Green group.NB. This document does not containt the new numbering for the amendments as tabled. Please check the La Quadrature du Net site for the correct numbering. 

Here is a defence of the Citizens Rights Amendments  explaining why they have been tabled and in particular, why Amendment 138 and 166 should be passed in their original form.

Here is the Policy Paper which was the basis for the Citizens Rights Amendments. 

Here are  the Citizens Rights Amendments online .

 

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) Fight for the Net in EU taken up by the Left, iptegrity.com,2 May 2009. 

 

 

 

 

 

 

 

 

 

The Copyright Enforcement Enigma tells the story of the 2009 Telecoms Package and how the copyright industries tried to hijack it.

'accurate and absorbing account of the story of the Telecoms Package' -Journal of International Commercial Law and Technology

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

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Copyright Enforcement Enigma launch, March 2012

European Parliament launch for Copyright Enforcement Enigma

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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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The Copyright Enforcement Enigma - Internet Politics and the ‘Telecoms Package’

by Monica Horten

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