The Telecoms Package Conciliation Agreement should stop the worst of the Hadopi and 3-strikes measures, and it ring-fences what can be done by governments who wish to restrict the Internet. That is what the European Parliament intended. But there are some differences in the interpretation, as a trawl of experts, lobbyists and websites reveals.
European governments will find it harder to legislate for 3-strikes measures under the new Telecoms Package, although it may well go to the European Court before we can be 100% clear what is possible and what is not.
The European Parliament's rapporteur, Catherine Trautmann, speaking at the press conference on 5 November, was clear that the text was intended to block 3-strikes. "Now we have legal
certainty and clarification on the right to a prior decision when it comes to restrictions or penalties imposed by the member states". And she also said that "the text reverses the burden of proof".
The chairman of the European Parliament's delegation, Alejo Vidal Quadras, said that " it will make it impossible for the curtailment of rights in non-urgent cases such as the downloading of intellectual property" and that " the user is absolutely protected against any type of arbitrary restriction by the public authorities ."
Viviane Reding, the European Commissioner for Information Society, said: " a 3-strikes law which will cut off users without prior procedure will certainly not become part of EU law". She also said that "promotion of legal offers should become a priority for policy-makers".
However, given that the EU has been less than honest throughout this entire process, I did not want to take their words for granted. So I called around and checked a few websites.
To be more precise, it opens the door with the wording "national measures regarding end users access to services and applications" . Several people pointed out to me that these words refer to 3-strikes measures (as I have consistently argued).
Then it circumscribes what can be done with the words
These words make it clear that a prior procedure must be implemented before a user's Internet access can be cut off. And that users cannot be cut off the Internet on the mere say-so of a rights-holder.
The text also makes it clear that any measures shall respect fundamental rights and freedoms as guaranteed by the European Convention on Human Rights. The right to freedom of expression is guaranteed without interference from a public authority.
The text relates to technical measures which the UK government wants to bring in, as well as to the Hadopi law in France. The UK's technical measures are a clear example of ‘interference' and it's arguable that under this law they would not be permitted. Further, the UK proposals that I have analysed have only an appeal process, which takes place after the sanction is applied. This would also not conform.
The only occasion when these guarantees need not apply is for strictly limited exceptions of "urgency". I am advised that copyright infringement would not count as "urgent".
In fact, the wording introduces nothing new into European law, but it does serve as a reminder for governments wanting to introduce 3-strikes laws, of what European law provides for. In particular, it is a reminder of the legal process for sanctioning people.
This view was supported by lawyers contacted by the UK ISP TalkTalk. In particular, Scott Fairbairn, a telecoms and IP lawyer with CMS Cameron McKenna, is reported in ISP Review as saying: "The recently agreed wording in the draft EU Telecoms Package is clear. Rights holders cannot act as judge and jury in these matters. They cannot simply instruct ISPs to disconnect their customers or restrict their internet connections. In no way can that be considered to be a 'fair and impartial' procedure as article 1(3)a of the new Framework Directive demands." Mr Fairbairn also commented that the forthcoming UK law will contravene EU law if it does not offer users a fair and impartial tribunal to consider each case"
An indicator that this is the prevailing interpretation was the thundering silence of the rights-holder websites. None of the key sites which I checked, reported the outcome.
A rights-holder lawyer, John MacKenzie, from Pinsent Masons suggests that the UK government measures would be possible, and part of his argument is based on a premise that Ofcom could serve as the ‘prior fair and impartial procedure''.
My feeling is that his interpretation would be challenged. Considering just this one point, Ofcom is the industry regulator, and I think it would be quite a stretch of the regulator's role to apply sanctions to Internet users and be in a position to provide for a right to be heard before applying those sanctions.
However, several lawyers I spoke to found difficulties with the text, suggesting that it is ambiguous, and that it offers loopholes for self-regulation or so-called voluntary agreements. It addresses legislative measures, but it is still unlclear how to interpret it in the context of ISPs being asked to police their networks where no legislation is put in place. The European Parliament was aware of this issue, and intended to address it byincluding the words "and their implementation" in the second paragraph. The lawyers I spoke to, differed in their interpretations on this point.
One content provider that I spoke to, told me that challenges in the European Court of Justice can be expected.
An interesting view that emerged (from a telco lobbyist) is that Internet users rights are now at the top of the political agenda.
Christian Engstrom MEP (Pirate Party/Green group, Sweden) providers another, detailed explanation on his blog of his understanding of the text.
Watch the Telecoms Package press conference webcast.
The text of the Telecoms Package Conciliation Agreement is:
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 these measures regarding end-user’s access to or use of services and applications through electronic communications networks liable to restrict those fundamental rights or freedoms may only be imposed if they are appropriate, proportionate and necessary within a democratic society, and their implementation 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. Accordingly, these measures may only be taken with due respect for the principle of presumption of innocence and the right to privacy. A prior fair and impartial procedure shall be guaranteed, including the right to be heard of the person or persons concerned, subject to the need for appropriate conditions and procedural arrangements in duly substantiated cases of urgency in conformity with European Convention for the Protection of Human Rights and Fundamental Freedoms. The right to an effective and timely judicial review shall be guaranteed.
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 may be used for non-commercial purposes only, and the author's name should be attributed as: Monica Horten (2009) Telecoms Package: the verdict, http://www.iptegrity.com 13 November 2009