As the two sides in the Telecoms Package tug-of-war meet again on Wednesday evening, the ‘Hadopi' test could be the deciding factor. The Council wants this to be the final meeting. Will it also be the final showdown for Internet rights in Europe?
The Telecoms Package Conciliation committee meets in full for the first time tomorrow. This is the so-called Conciliation Dinner which I previously wrote about and it is the date chosen by the Council to seal up the Package forever.
It is now emerging that the Council is using the
The Council's Hadopi test is whether or not the provision will allow the French government's 3-strikes law, and the Mandelson proposals for a more hi-tech 3-strikes in the UK . If the new text would allow 3-strikes, the Council will accept it. If the provision would block 3-strikes, the Council will reject it.
Therefore, MEPs can be reassured that any text proposed by the Council, no matter how obcure and difficult the text is, will permit 3-strikes, French and British style.
The question is whether the European Parliament will have sufficient weight on its side to stand up to the inevitable pressure from the Council and defend the rights of EU citizens.
The European Parliament's Hadopi test should be whether the text will block 3-strikes and similar measures. This was the purpose of the original Amendment 138. The point is that the right of broadband providers and member state governments to restrict the Internet is already codified in the Universal Services and Users Rights (sic) directive also known as the Harbour report, after its rapporteur Malcolm Harbour . Amendment 138 - and whatever text replaces it - is about "the procedure to follow to impose restrictions on Internet access for users" ( text published on the European Parliament's own website in May 2009). It is therefore critical that the European Parliament understands the policy issue which is entailed in this one amendment.
The Hadopi test gives the European Parliament the opportunity to publicly challenge the council on its interpretatio of the test.
The MEP in whom the Internet user community are placing their trust, is Stavros Lambrinidis . He wrote a report for the European Parliament last year, which was carried by a majority vote against opposition from copyright-supporting MEPs, to preserve fundamental rights to Internet users (see below). They also appeal to the Greens' Philippe Lamberts and with Christian Engstrom (Pirate Party, Green group).
Christian Engstrom has put up a 'Hadopi test balloon' on his blog and is seeking advice.
The Telecoms Package conciliation meeting commences at 7 pm Brussels time tomorrow (Wednesday)
The Council's latest proposal, released last Friday, looks like this. It is an edited version of the the European Parliament's text constructed at the last meeting of the Conciliation delegation. It will permit Hadopi-style administrative justice and the measures proposed by Lord Mandelson in the UK:
3a. Measures taken by Member States 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, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and general principles of Community law.
Any of the above measures liable to restrict those fundamental rights or freedoms may therefore only be
taken in exceptional circumstances and imposed if they are appropriate, proportionate and necessary within a democratic society, and shall be subject to adequate procedural safeguards in conformity with the European Convention for the Protection of Human Rights and Fundamental Freedoms and with general principles of Community law, including effective judicial protection and due process. In particular, any Accordingly these measures may only be adopted as a result of a prior, fair and impartial procedure ensuring inter alia that the principle of may only be taken with due respect for the principle of the preumption of innocence and shall respect the requirements of a fair and impartial procedure including the right to be heard of the person or persons concerned be fully respected. Furthermore, shall be guaranteed.
This shall not affect the competence of a Member State, in conformity with its own constitutional order and with fundamental rights, inter alia, to establish a requirement of a judicial decision authorising the measures to be taken.
Lambrinidis report: MEP Stavros Lambrinidis report was voted in March last year. In the report, Mr Lambrinidis made two recommendations to the Council::
Full and safe access to the Internet for all: recommendations include participating in efforts to make the Internet an important tool for the empowerment of users, an environment which allows the evolution of ‘bottom up' approaches and of e-democracy, while at the same time ensuring that significant safeguards are established as new forms of control and censorship can develop in this sphere.
Member States must 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.
Recent appeals from Internet NGOs to the European Parliament:
Memo from La Quadrature du Net on how to propose a new version of Amendment 138.
Scambio Etico call for the European Parliament to stand up for Internet users rights and oppose national measures to cut users off.
An alternative text is being circulated, and which could meet the European Parliament's HADOPI-test, as follows:
Amending Article 8.4.h adopted in 2nd reading:
The national regulatory authorities shall promote the interests of
the citizens of the European Union by applying the general
principles of Community law, and especially applying the principle
that no restrictions to end-users' access to electronic
communications services shall be imposed that hinder the protection
and exercise of the rights conferred by Article 6 and Article 13 of
the European Convention of Human Rights, notably in accordance with
Article 11 of the Charter of the Fundamental Rights and of the
Amending Recital 3a adopted in 2nd reading:
Recognising that the Internet is essential for education and for the
exercise of freedom of expression and access to information, any
restriction imposed on the access and/or use of the Internet should
be in accordance with the general principles of Community law,
notably in accordance with the European Convention of Human Rights
and the Charter of Fundamental Rights of the European Union. In
particular, end-users' access to electronic communications services
should not be suspended without prior ruling by the judicial
authorities 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
My understanding is that this wording would remove a technical legal obstacle regarding compliance with Article 95 of the Treaty, which is entailed in the wording of the original Amendment 138, but nevertheless would protect users rights. Perhaps my lawyer-readers will advise if it meets the test!
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) The Hadopi test - who will win the final EU tug-of-war? http://www.iptegrity.com 3 November 2009.