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

A leaked document shows that the rapporteur for users rights does not get the Internet rights issue.


A document authored  by the MEP Malcolm Harbour, rapporteur for the Universal Services and Users rights directive, attempts to dismiss the users rights Amendment 138 saying that it is "badly placed and lost" and "concerns only a principle regarding restrictions".  The document appears to be a note written for internal use. His comments are interesting in light of claims by proponents of Amendment 138 that they have protected users rights and that Internet is now a fundamental right.

 He compares Amendment 138   to the so-called "compromise"agreement which concerns "measures taken regarding end-users rights of access to or use of services and applications".

 Of particular interest, is that he suggests that the phrasing on "measures" creates  a right for end-users. The

"measures" referred to in the text are graduated response and 3-strikes - it is difficult to see at this point in time what else they could refer to. By swapping the words, it  suggests that "graduated response shall respect the fundamental rights" creates a right for users  - this is clearly  a nonsense.


From my discussions with user NGOs, they  consider it important to have principles which guide the regulation of the Internet. In particular, they would like to see  principles enshrined in the Package which guide the regulation of telecoms operators and the third-party industries which are trying to impose "measures" onto users. This is what is at stake here, and lies at the heart of the debate surrounding Amendment 138. To say that it is "only" a principle, implies a disrespect for those users.


One can take issue with this document on a number of other points.  It  implies that the original Amendment 138 does not apply to whole Framework. I think this is incorrect. On the contrary, the point of the Framework directive is that it sets the ground rules for all telecommunications operators and how they will be regulated. The positioning of the Amendment in  Article 8, which is about the regulators' duties towards European citizens, was appropriate. It gives the regulator a duty to see that citizens will not be sanctioned for activities on the Internet, without a court order being first obtained. This is, contrary to Mr Harbour's assertions, very powerful.


Another point which has escaped Mr Harbour, is that the "compromise" talks about "natural persons". This is not the same as "end-users". A "natural person" is an individual. In terms of the copyright issue, they could be an author. Thus the "compromise" says that the fundamental rights of authors should be respected - and opens the door to copyright enforcement. An end user is defined in the current version of Mr Harbour's own directive, as anyone, including a business, who uses the networks.


In his fourth paragraph, he does not mention the discussions elsewhere about the difference between a ‘tribunal'  and a court. But also, I feel that there is another point here - having re-read the amendment, I wonder if the "compromise" actually means that people còuld  be punished, and have the right to challenge it by going to court. This is the opposite way around from the original Amendment 138, which  makes it clear that the company wishing to sanction a user must first obtain a court order.

Malcolm Harbour is not responsible for Amendment 138, which is the responsibility of Catherine Trautmann, rapporteur for the Framework directive. He has previously criticised her for weakly defending the "compromise" and he has also criticised the ALDE (Liberal) group for requesting a change in the voting order. On a separate occasion, he attacked the Swedish MEP Christofer Fjellner, for seeking to promote a different users rights amendment, known as Amendment 166.


It all begs the question as to what interests really lie behind the "compromise" on the Telecoms Package.

Here is Malcolm Harbour's analysis of Amendment 138.  


Original Amendment 138

"Compromise" text, also referred to as the ‘fake' 138

(h) applying the principle that no restriction may be imposed on the fundamental rights and freedoms of end-users, without a prior ruling by the judicial authorities, notably in accordance with Article 11 of the Charter of Fundamental Rights of the European Union on freedom of expression and information, save when public security is threatened where the ruling may be subsequent.

3a. Measures taken 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, freedom of expression and access to information and the right to a judgment by an independent and impartial tribunal established by law and acting in respect of due process in accordance with Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms.


This article is licensed under a Creative Commons Attribution Non-commercial-Share Alike 2.5 UK:England and Wales License. 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)Malcolm Harbour: Amendment 138 "only a principle" ,, 21  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

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

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