The European Commission has asked the French government to clarify a number of points in respect of its Creation and Internet law, which will impose graduated response / 3 strikes measures onto Internet users.

The Commission’s requests have been made public in what appears to be a leaked document, published by the French news website La Tribune. In particular, it has asked for clarification on internal market and fundamental rights issues. It wants the information before the law is adopted,  and therefore appears to be asking France for a  temporary halt on the process until these matters are clarified:

"Les autorités françaises sont invitées à prendre en considération les remarques qui précédent ainsi qu'à fournir les clarifications demandées avant de procéder à l'adoption de leur projet notifié"

Interestingly, the Commission also confirms that the ‘fight against piracy’ and ‘co-operation’ between telecoms operators and rights holders for this purpose, is being discussed currently in the European Parliament and the Council of Ministers – in the context of the Telecoms Package review. This is an admission from the Commission which its PR material seeks to gloss over. And the Commission calls for a balanced approach in the handling of filtering measures in the Universal Services directive.

Specific matters on which

the French government is asked to clarify include:

- Internal market issues: how it will deal with infringements of French copyright that occur outside France, and infringements of foreign copyright by French users?

- Whether the sending of warning messages implies any actual knowledge on the part of an ISP? (The answer to this will be important for the ISPs).

- On what basis is it determined that a case will be pursued? What criteria are used?

- How is it justified to have an administrative authority and not a court? It points out the that: - The measures must satisfy the legal test of proportionality

- The means of securing an Internet access must not result in a general obligation for surveillance on the part of the ISP.

- The Internet is used for many services other than creative content - The law should detail measures for the development of new business models

- The law appears to jeopardise the right to due process and does not specify how errors will be avoided.

- Disabled people have special rights which could preclude cutting off their access

In specific reference to the Telecoms Package, Universal Services directive, the Commission  says that users must be informed of their legal obligations in respect of copyright, however, it continues, all measures which are more than just education, such as the filtering of users communications or the suspension of Internet access, must find a just balance between the need to combat piracy online and other important objectives such as universal access, the rights and freedoms of users, and limitation of the liability of the ISP. In particular, measures which result in the interception of the flow of Internet traffic must be treated with caution, in order to avoid negative consequences on the rights to privacy and freedom of information for Internet users in Europe.

La Tribune does not state the source of the leaked document.  

The La Tribune article is here.

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