The European Commission has sneaked out its position on the Telecoms Package second reading. Decoded, it calls for the Package to seal in the right of governments and broadband providers to restrict the Internet.
DG Information Society has quietly released its position on the Telecoms Package Second Reading, just as everyone is heading off for the summer holidays. No doubt Commissioner Viviane Reding was hoping no-one would see it. Why? It calls for a "compromise" text which the Council of Ministers was trying to push onto the European Parliament, which could have the effect of giving permission to governments to block access to Internet services and applications.
The so-called "compromise" is the replacement of Amendment 138 ( which seeks to protect users rights on the Internet) with an alternative which was drafted by the Council (sometimes known as the ‘fake 138'). The replacement, when considered in context with other Amendments in the Package, will seal in to the Telecoms Framework a right for
governments to implement ‘measures regarding end-users' access to or use of services and applications through electronic communications networks'.
The so-called "compromise" is positioned in Article 1 of the Framework directive, addressed to Member States. It should be read in conjunction with Amendment 1.2a of the Universal Services and Users Rights directive, which will permit broadband providers to block impose "conditions limiting access to and/or use of services and applications". In light of T-Mobile blocking Skype, BT throttling peer-to-peer services, and Karoo, a small UK ISP cutting off users, it should now be abundantly clear what this text means. .
It is far from the ‘balanced' approach which the Commission claims. Officially, the Commission wants to present the Package as being beneficial for users. For example, it says, they will have a right to a contract, and to switch providers. What it does not say publicly, but is being actively debated by civil servants behind the scenes, is how far the text permits governments to go with copyright enforcement measures.
The "compromise" would not preclude the blocking of peer-to-peer services or other services by broadband providers, possibly under orders from governments. The "compromise" would not pre broadband providers terminating access, using the contract as the means of doing so, without any requirement to get a court ruling. The user could appeal to an administrative body, which is not the same thing.
Although the text states that such ‘measures' should ‘respect' fundamental rights, it appears that this is mere lip service to the law, and it is becoming apparent that governments believe that they may order ‘technical measures' such as protocol blocking and the blocking of file-sharing sites.
The recent case of Karoo, in Hull, UK, is an instance of where broadband providers are already being pushed to sanction users on the basis of rights-holders claims, in anticipation of the Telecoms Package going through.
It is arguable that Mrs Reding's move is a failure on her part to protect European citizens, and to do her duty as Guardian of the Treaties. Her words, and those of her spokesman, Martin Selmayr, spoken against the Chinese government , make it clear that the Commission understands very well that 'technical measures' mean censorship, and they ring hollow in light of what they want to do in Europe.
Quote from the Commission's statement on the Telecoms Package Second Reading, Framework directive:
"Concerning Amendment 138 the Commission accepted it in its amended proposal after the European Parliament's first reading but supported the European Parliament-Council compromise text afterwards as a balanced solution. The Commission could, therefore, accept the amendment, but will do its utmost to facilitate the emergence of a compromise between the co-legislators on this issue. "
The so-called "compromise" text that the Commission wants to see in the Telecoms Package compared with the original Amendment 138 as passed by the European Parliament:
Original Amendment 138
"Compromise" text, also referred to as the ‘fake' 138
Paragraph 3a (new)
(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.
Get the full text of Universal Services and Users Rights directive
For background, here is some early lobbying from a creative industry coalition, demanding that copyright measures should go into the Telecoms Package (see p4 of the paper):
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) Mrs Reding reveals her card on Amendment 138 , http://www.iptegrity.com 3 August 2009.