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

'No' to content gatekeeping by ISPs.   A higher privacy barrier for copyright policing.

Two pieces of good news for the Internet have emerged from the EU in the past 7 days. They arise out of two entirely separate processes, but both indicate a mood of distaste for corporate control of the Internet. Last week, the European Parliament voted in favour of a net neutrality law; this week the European court of Justice ruled that a law on the collection of telephone and Internet metadata is invalid.

 The European Parliament’s First Reading vote in favour of  net neutrality in the Telecoms Regulation (Connected Continent*) came as a surprise. It was certainly not an outcome that one would have placed bets on. The lobbying against it by the telecoms industry  is particularly strong.

 It means that Europe could get a law that underpins freedom of communication on the Internet. It will provide a barrier to the kind of  corporate gatekeeping the increasingly  looms as a threat.

 The European Parliament actually voted for an amendment inserting a  net neutrality principle into the law. The principle reads:

"net neutrality" means the principle  that all internet traffic is treated equally, without discrimination, restriction or interference, independent of its sender, receiver, type, content, device, service or application;

 The net neutrality principle was tabled by the French Socialist MEP and former French culture Minister, Catherine Trautmann. It was Catherine Trautmann who set off the whole process of net neutrality in European law, with a deal that concluded the 2009 Telecoms Package. (See my book The Copyright Enforcement Enigma - Internet Politics and the ‘Telecoms Package’ )

 The European Parliament additionally voted for amendments that place stronger caveats around traffic management practices by ISPs. These amendments seek to preclude ISPs discriminating against particular content or services, and provide a tougher legal environment for those that want to do content deals. ( See EU Parliament net neutrality battle comes to a head )

 All of these amendments were adopted with a fairly narrow majority. It was  only possible because some EPP members sided with the Socialists, Liberals and Greens. 

All the British ECR members voted against the net neutrality principle and traffic management amendments. One presumes they  voted  to support the British  government’s attempt to impose content filtering for  parental controls, although it is also believed they wanted to support the Internet Watch Foundation.

Of course, all those involved are trying to put the best spin on it. The Rapporteur, Mrs Del Castillo, spoke only of the proposal to remove roaming charges, and conveniently left out net neutrality. The Commission is pretending this is what it wanted all along. And even our own Ed Vaizey, despite his government's negative position,  tweeted cheerily about the Europe voting for net neutrality.

 This  outcome  means that the next round – the Second Reading in the European Parliament – could get exciting, as the Socialists will want to maintain their majority. There will be hard lobbying against it ( see this article from TelecomTV on ETNO's reaction). However, before the Second Reading, the Council of Ministers will  have to produce its position on the entire Connected Continent  proposal. My understanding is that the Council will go through the Commission’s draft clause by clause. This could take a long time and could indeed be a delaying tactic. (For more on the processing of  European telecoms law, see my book on the 2009 Telecoms Package: The Copyright Enforcement Enigma - Internet Politics and the ‘Telecoms Package’ ).

 The ruling on the Data Retention directive (2006/24/EC)  by the European Court of Justice  was perhaps not quite such a surprise, since the Advocat General’s Opinion has previously been released.  However, it may  have more immediate effect.

The ruling says that the Data Retention directive is disproportionate, because it fails to limit the collection of communications metadata (including email medatadata) , and it fails to constrain  the access to the stored data or to offer safeguards from possible abuse. Under the Data Retention directive, metadata is collected by the ISPs on behalf of national governments.  Metadata does not reveal the content of communications, but does say  who, what, when, where and how the communicated, and in that sense, may reveal a lot about an individual. There are other, non-government interests who want to get their hands on this data, notably, the copyright industries.

 Specifically, the ECJ ruling says that the directive is problematic because it covers

in a generalised manner, all individuals, all means of electronic communication and all traffic data without any differentiation, limitation or exception”.

 The ECJ ruling also says that the Data Retention directive does not require data to be retained within the  EU, and in that respect too, it fails to provide for the  protection  of  data of European citizens.

The ruling is relevant in light of the  Snowden revelations about NSA and other intelligence agency surveillance of Internet users. The primary tool for intelligence agency  surveillance is the communications metadata.  It would suggest that the kind of mass surveillance revealed by Edward Snowden’s leaked documents must surely be illegal. And corporate compliance with such requests could also be questioned. Hence, the ruling could serve to protect freedom of expression by protecting our right to speak without our data trails being hoovered up by governments.

 An interesting side-effect is that it puts yet another spoke in the wheel of the copyright industries, who are desparate to get hold of the metadata in order to apply Internet copyright enforcement measures, such as 3-strikes and notification systems, whether statutory of voluntary. Thus far, EU law has declined to put copyright on the list of reasons for access to the data, and this ruling would seem to underpin that.




*The full title of the Telecoms Regulation is the Proposal on a European single market for electronic communications and to achieve a Connected Continent.

This is an original article from and reflects research that I have carried out. If you refer to it or to its content, please cite my name as the author, and provide a link back to Media and Academics – please cite as Monica Horten, 2013, Net neutrality & data retention – Europe pushes back against a corporatised Internet  in  9 April 2014 . Commercial users - please contact me.

If you liked this article, you may like my book The Copyright Enforcement Enigma  Internet Politics and the Telecoms Package.

Tags: EU  Telecoms Regulation, European Commission, European  Parliament, Connected Continent, net neutrality, Pilar del Castillo, ITRE, IMCO, Telecoms Package, data retention directive, metadata, eu, law, commission, council, snowden, ECJj, European court of justice.







The Copyright Enforcement Enigma tells the story of the 2009 Telecoms Package and how the copyright industries tried to hijack it.

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Copyright Enforcement Enigma launch, March 2012

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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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