EU lawyers say that Amendment 138 has to go because of a legal technical problem. And they insist on a poor replacement that will do nothing to stop the imposition of copyright enforcement measures. Given that we know the political agenda for both copyright and Internet restrictions, shouldn't they do better?
***Update ( Monday ) - on the day the legal services were supposed to send their opinion in respect of Amendment 138, the European Parliament's email is down, giving MEPs a small taste of what it means to be cut off on a digital network. It also means they will not have proper time to consider the legal services' opinion. How can they do their job for European citizens, when they cannot get the information in a timely way? ***
***Further update (Monday evening) - the document was released this afternoon, but was not public. The EU does not want citizens to know how it will restrict the Internet. ***
The European Parliament's legal services will deliver their opinion on Monday in respect of Amendment 138, the Telecoms Package amendment that seeks to protect Internet users rights in respect of copyright enforcement and Internet restrictions.
The Parliament's lawyers are expected to say that Amendment 138 does not comply withthe legal basis for telecoms legislation, which falls under Article 95 of the EU Treaty. The ‘prior' decision taken by a legal institution, is the problem, because it implies that the directive is asking member states to re-organise their judiciaries and their legal systems. Article 95 directives cannot ask member states to do that. They will argue that the Parliament has gone outside its legal competence and that the Council is correct to reject Amendment 138 on this basis.
That is when it gets interesting.
They will then argue that it is important to have guarantees for citizens and to introduce the spirit of Amendment 138 into the Telecoms Package text. The text must provide those guarantees and at the same time not become an obstacle for member states' judicial systems.
That sounds good, but...
They will say that a text that refers to general principles of community law would work, such as decisions taken by an independent organisation, reasoned decisions and respect for right. And that a tribunal is just an authority that acts as a tribunal, whether it belongs to the legal system and bahvesas a judge.
They will also say that a text that was produced yesterday by the Commission deals with the objections raised by the Council.
It is obvious where this is leading.
The European Parliament legal services are producing just exactly the argument that the Council wants, in order to pressure the Parliament to concede and drop Amendment 138. The wishy-washy Commission text is as ill-suited as the Council's text, and does nothing to resolve the policy issues that are bound up in the Telecoms Package. It leaves the door wide open for three-strikes and "technical measures" with Hadopi-like rubber-stamping over users' rights.
A few points:
The Council's reasons, such as were given, for rejecting Amendment 138, have been criticised for ranging from the weak to the far-fetched.
The European Parliament legal service is duty bound to give frank, objective and complete legal opinions. But even if they are technically correct, they fail to demonstrate a real understanding of the policy issue that is at stake.
However, they have probably received a very narrow and limited brief.
So for the sake of clarity, MEPs could ask them to go back and reconsider on the following basis:
Amendment 138 was put there as a safeguard for users against disproportionate copyright enforcement measures.
Copyright enforcement in respect of Internet downloading is supported in the Telecoms Package, and enabled by it.
The rights-holders deliberately got it there in order to impose liability for copyright onto the network providers.
Copyright enforcement it is contained in the "agreed" Harbour report. It is a way to avoid the e-commerce directive "mere conduit" provision.
The "agreed" Harbour report also permits operators to block Internet services and applications, and Amendment 138 arguably provides some protection against the abuse of such blocking.
Thus, the principle in Amendment 138 is not about judicial authorities per se , but it is to safeguard the rights of Internet users against the imposition of copyright enforcement measures that leverage on ISP liability and which may entail a requirement for judgement.
This is the principle that should be built into their new revised text for the next trialogue.
Alternatively, they could delete the text that allows copyright enforcement and Internet blocking, which would resolve the issue very quickly, and deal with the public policy requirement.
The Commission text
The European Commission has written - on request from the Parliament - a text is proposes as a replacement for Amendment 138. This is the text. It is also available on the La Quadrature du Net website, with further analysis.
Proposition for Article 1.3.a of the Framework directive.
"Measures taken by Member States regarding end-users' access to or use of services and applications through electronic communication networks shall respect the fundamental rights and freedoms of natural persons, including in relation to privacy, freedom of expression and access to information and due process and the right to effective judicial protection in compliance with the general principles of Community law. Any such measures shall in particular respect the principle of a fair and impartial procedure, including the right to be heard.
This paragraph is without prejudice to the competence of a Member State to determine in line with its own constitutional order and with fundamental rights appropriate procedural safeguards assuring due process. This may include requirements of a judicial decision authorising the measures to be taken and may take account of the need to adopt urgent measures in order to assure national security, defence, public security, and the prevention, investigation, detection, and prosecution of criminal offences."
My main comment on the Commission text is that it starts from the principle of the Member State government's right, and not the citizens right. It implies that the governments may wish to impose measures that restrict access to Internet services and applications. In my opinion, this reverses the principle of Amendment 138.
The Council text did the same.
I do not understand the need for the last phrase at all.
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) Will EU lawyers white-out Amendment 138? http://www.iptegrity.com 9 September 2009.