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

The European Parliament is censoring a document that citizens need to see because it represents the crushing of their rights to access Internet services and applications. Most importantly, the text, from the European Parliament's legal services, does NOT answer the policy question about copyright enforcement and Hadopi-style administrative justice. 

The rapporteur, Catherine Trautmann,  is called into question. Is she doing the Council's bidding? Is  she deliberately ignoring  requests from  colleagues on the Conciliation committee?  


The text the European Parliament does not want you to see is a document containing the European Parliament's legal opinion on Amendment 138. It is  now being circulated in the European Parliament, marked 'confidential'. However, the key parts of the document have

appeared on the La Quadrature du Net website (see link below). What it actually says is that technically, Amendment 138 goes beyond the EU's competence to legislate, but the alternative text proposed by the European Commission, stays within the EU competence.


The problem is that this legal technicality will be used by the Parliament's rapporteur, Catherine Trautmann,  backed by certain  forces within the EU, an an excuse to drop Amendment 138,  and push the Telecoms Package through. It should be seen however, as just that - an excuse.


Amendment 138 is about a principle of protecting citizens rights of access to services and applications on the Internet. It is about opposing 3-strikes measures to enforce copyright enforcement, and represents a major principle against the efforts of the copyright industries to impose liability on ISPs for copyright. That is the policy issue at stake here.  


The European Parliament  does not want citizens to see this document, because it does not want them to know how it will manage to erode their rights. It is undemocratic that the Parliament does not allow others to examine the text, and properly debate it.


The lawyers appear to have been given a fallacious brief. The text answers one narrow question, which is NOT the policy question. It answers whether the amendment complies with Article 95 of the Treaty of the EU. This article is about the EU competence to regulate the internal market. It is a general article and NOT specific to telecommunications, or to the issue of copyright enforcement on the Internet.


The European Parliament is not just witholding text, but also deliberately ignoring requests from members of the Conciliation committee.


 It calls into question Catherine Trautmann's role as rapporteur.  In my previous article, I pointed out how Mrs Trautmann had turned a question by Phillippe Lamberts  (Green, Belgium) which would have opened up the legal advice into the policy area of protecting rights of access to the Internet versus copyright enforcement;  into one that led to the Council's position. The Council ( which is comprised of the 27 national  governments of the EU)  seeks to permit Hadopi-style justice and 3-strikes.


Does Mrs Trautmann's  mandate mean she can do exactly as she wants? Is she obligated to take orders from the Council of Ministers? But especially, what is her mandate in respect of requests from colleagues on the Conciliation committee. If they make a reasoned request, is she not obligated to address it and follow it through?


Phillippe Lamberts  (Green, Belgium) requested the following questions, which are very different from what was asked of the legal services.  He   pushed for a statement from the Council of its objections to Amendment 138, and he asked two explicit questions. He wanted a legal opinion if  Amendment 138 does infringe on the rights of  member states to organise their judicial systems in the way they want? And on the use of the word 'prior' - he wanted a clear legal opinion on what difference that makes, because, he said, if a user is excercising their right to due process after being sanctioned, in many cases  it has the effect of voiding  the right.


Up-levelling the debate, we must ask why national governments are so concerned to push this Telecoms Package through, bullying MEPs into agreement*, and repressing debate. If it was just about economic reform of the telecoms industry, I cannot see that this would give such cause for repression. There has to be another reason, one that national governments would not wish to admit to.


This document raises many questions for European  citizens: 

Why has the policy principle been ignored by the rapporteur?


Why is the chairman of the Conciliation commitee, MEP Alejo  Vidal Quadras, not ensuring that all delegates are heard fairly and the the process is equitably run?


Why do the 27 EU national governments want to repress their citizens' ability to communicate with Hadopi-style measures? 


The European Parliament's legal services  analysis of Amendment 138 is  on the La Quadrature du Net   website.

 La Quadrature du Net   is asking citizens to call MEPs urgently . They are also seeking opinions from lawyers.


*Two Swedish politicians have been approached by British and French officials, in an attempt to ‘persuade' them to change their support and  not to oppose the Council. One of them was Eva-Britt Svensson, the MEP who in First and Second Reading, tabled amendments  which sought to safeguard users rights.


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)  European Parliament censors Amendment 138 13 September  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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Don't miss Iptegrity!  RSS/ Bookmark 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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