What is a 'prior, fair and impartial procedure' and how far will it prevent British or French -style 3-strikes?

The Telecoms Package was sealed tonight, following what appears to have been a lengthy negotiation between the European Parliament and the Council of Ministers. A text was agreed last night at around 11pm Brussels time (see below). The European Parliament appears to have gained a

concession to include the word "prior" but one must remain sceptical as to the real effect of the agreement, pending further legal analysis.

At issue was 3-strikes proposals - French and British style - for copyright enforcement measures on the Internet. The measures would primarily target peer-to-peer users. However, the wider stakes relate to whether governments and Internet providers may block access for political purposes. 3-strikes and Internet blocks are permitted in another part of the Telecoms Package known as the Harbour report, which is why this agreement was important.

The test which both sides in the negotiation were using, was whether the text would allow or block such measures. The Council, representing member state governments, and driven strongly by the British, was pushing hard for a text that would permit 3-strikes. Several members of the European Parliament team wanted to ensure that 3-strikes would not be permitted in Europe.

The agreement appears to provide for some kind of safeguard against overly stringent measures imposed by governments. What's unclear is how much protection they would provide against government driven "voluntary" agreements, or against commercial operators imposing Internet blocks at their own discretion. Such blocks are permitted in the other part of the Package, known as the Harbour report.

The Telecoms Package agreement does provide for 'a prior, fair and impartial procedure'. The inclusion of the word 'prior' will be claimed as a small victory for the European Parliament because the implication is that users must not be cut off the Internet without having first been through some sort of legal procedure. The respect for the presumption of innocence should mean that rights holders accusations, on their own, are insufficient.

However, I am sceptical. Its my understanding that the British government would not have agreed to something that would preclude the proposals currently in hand against peer-to-peer users. Those proposals are to force the Internet providers to use high-tech methods, including deep packet inspection, to cut off users. The Secretary of State, currently Lord Peter Mandelson, is proposed to be given the direct power to order to commencement of these measures, at his discretion.

The British proposal was to implement something similar to a parking fine, where there would be an administrative procedure only, and not a court.

The issue now is whether or not, this text requires a court procedure. And what kind of measures it applies to.

It also does nothing on the net neutrality issue. The Harbour report will de facto permit a non-neutral network in Europe. The matter of a 'declaration' of some sort to protect net neutrality was mooted as part of a solution to the Telecoms Package stalemate, but would appear to have been dropped.

A Reuters report reminds us that the European Parliament originally voted in May, by 407 votes in favour, 57 against and 171 abstentions for Amendment 138, which was intended to block 3-strikes measures.

The Financial Times also has a report, but disappointingly (especially to me as a paying subscriber) it incorrectly reports that a 'plan to make Internet access a human right' was foiled. This is total bunkum, and reflects a lack of understanding of the issues and arguments. Nor, if I am right, does the agreement give law enforcement agencies the right to cut people off the Internet, as the FT suggests. Law enforcement agencies will not have any such right, even with this weak result ( unless there is something that the Council has been keeping well hidden from all of us except the FT).

Amendment 138, which this new agreed text replaces, sought to protect Internet users rights, including the right to freedom of expression. Freedom of expression is a fundamental right under the European Convention of Human Rights, and the now ratified Charter of Fundamental Rights. Freedom of expression is a right to impart and receive information, without interference by a public authority. The British-style high-tech measures are most definitely "interference". Indeed, any use of deep packet inspection to intercept users communications, or to inspect the contents, or to limit users access by depriving them of services, features and functions available on the Internet, is arguably "interference".

A legal challenge, by someone with deep pockets, will now be needed to firmly establish the rights of Internet users.

Read the Telecoms Package agreed text from the 4 November meeting.

Post script:

The next battleground is the Anti-counterfeiting Trade Agreement (ACTA) , where EU officials are already negotiating on clauses to impose liability on Internet providers for copyright.

Post-post script: The offical PR will hail the Telecoms Package as a major reform. I have come across no-one who can defend it, even lobbyists who have an interest in seeing a competitive market evolve, do not praise it. The general views that I have received from people who have looked at the overall competitive issues, say that the Telecoms Package protects the legacy services operated by the large telecoms companies, and their dominant market positions, and it does little or nothing for new players. The kindest thing I have heard is that it unblocks a few bottlenecks for competitive providers.

As regular iptegrity readers will know, it certainly does nothing for users rights. The right to a contract is meaningless, when a dominant operator is given a right to dictate who you may communicate with.

For the full story of the Telecoms Package, see my book The Copyright Enforcement Enigma: Internet politics and the Telecoms Package ( Amazon currently has some discount offers on this book that are really good value!)

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) Telecoms Package - sealed but not with a kiss , http://www.iptegrity.com 5 November 2009

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