The UK government wants to cut out users rights to access Internet content, applications and services. Some of the information used to justify the change has been cut and pasted from the Wikipedia.

Amendments to the Telecoms Package circulated in Brussels by the UK government, seek to cross out users' rights to access and distribute Internet content and services. And they want to  replace it with a ‘principle'  that users can be told not only the conditions for access, but also the conditions for the  use  of applications  and services.

The UK government texts have been heavily criticised by  the French campaigning group La Quadrature du Net . It is believed  that they could have been  drawn up by the UK regulator, Ofcom.

The amendments have also appeared in a set of compromise proposals put forward by the Czech Presidency for the Universal Services Directive (Harbour report).

The proposed amendments  cut out completely any users' rights to do with content - whether accessing or distributing -  which would appear to be in  breach of the European Charter of  Fundamental rights, Article 10. The Charter  states that everyone has the right "to receive and impart information and ideas without interference by public authority and regardless of frontiers." In the digital age, the Internet, and the associated applications and services provided by the World Wide Web, is the means by which people exercise that right.

“NRAs shall promote the interests of the citizens of the European Union by inter alia:

(g) applying the principle that end-users should be able there should be transparency of conditions under which services are provided, including information on the conditions of to access to and/or use of and distribute information or run applications and services, and of any traffic management policies of their choice

The  wording  "conditions under which services are provided" and "conditions of use" also allude to the principle of conditional  access which applies to satellite and cable television. In EU law, it is established in the Conditional Access Directive (Directive 98/84/EC) which concerns protection of copyright on satellite and cable television systems. The subscription television model is  alluded to

 "We are already familiar with this in the broadcasting world, where certain cable or satellite operators may enter into exclusive agreements with content providers (like Sky and Premier League football). Similar arrangements may also exist in the electronic communications world"

La Quadrature du Net comments that these amendments will obligate national telecommunications regulators to enforce a  new business model, which is more like a cable television model and quite different from the Internet service provider model. At the same time, they remove the obligation from telecommunications regulators to guarantee users' rights to access and distribute Internet content services and applications. 

The amendments, if carried, would  reverse the principle of end-to-end connectivity which has underpinned not only the Internet, but also European telecommunications policy, to date.

Such a reversal would lead  to a fragmentation of the internal market for communications and for e-commerce. If  for example, the UK wants to limit users to just a few websites ( as is rumoured lie behind the amendments), then it is not only  restricting the subscriber who is paying for the service. The effect will be that it  renders  invisible the millions of other websites that are not on the ‘just a few' list. By default, this reduces the size of the market that is available to those millions of invisible websites. It also threatens the business models of Internet giants such as Google. 

In terms of the Telecoms Package negotiations, these amendments will  put the Council in direct conflict with  the European Commission. They set the Council against the Commission's objective of building up the   digital economy. The commissioner for Consumer Protection, Meglena  Kuneva , said  last week that she wants to remove  barriers to cross-border online commerce in the EU . She highlighted market fragmentation, and especially fragmentation due to intellectual property protection, as one of the main  barriers that she wants to address.

The Commissioner for Information Society, Viviane Reding has stated that she supports the Internet in Europe staying open. She said in a speech last month that "Net Neutrality has to be guaranteed. New network managementtechniques allow traffic prioritisation. These tools may be used to guarantee goodquality of service but could also be used for anti-competitive practices. "

They also deepen the division between the Council and the European Parliament on users and citizens rights in respect of the Internet. The UK amendments are in direct conflict with the citizens' safeguards enshrined in Amendment 138 to the Framework directive (Article 8.4(fa of the revised Trautmann report)  and Amendment 166 (Article 32a) to the Universal Services directive.

These proposals can be expected to be on the table for discussion in the trialogues between the European Parliament, the Commission and the Council taking place this month. Some sources suggest that the document was prepared by civil servants attached to the UK.It's possible that they were on the agenda for the IMCO committee meeting today, which was to discuss the revised Harbour report. 

The UK amendments will also put the Council in conflict with its own resolution of 27 November 2008, where it stated that: " future Internet developments, whether gradual or disruptive, and whether they concern the Internet's infrastructure, services or applications, represent major opportunities for Europe, requiring ambitious research and development work" and that " open and non discriminatory access to the Internet should be promoted in order to ensure effective competition and an innovation-friendly environment".

It's also interesting  that the  UK government's amendments make a direct link between the conditional access to Internet content and services, and the so-called " traffic management systems". Aside from the many issues raised by   " traffic management systems", there is one specific point at issue here.

In the accompanying recital - which is supposed to provide guidance - the definition of traffic management has been cut and pasted  from the Wikipedia.  This is revealed by a quick comparison of the Council's proposed text (Presidency compromise, Article 20)   with the UK proposed amendments, and the opening  text from a page about bandwidth management in Wikipedia.

There is an  obvious irony that the very person seeking to close off the Internet, turns first to the most open reference source on the Internet, in order  to obtain a definition.

I was alerted to it  by the naive wording about ‘filling the link' - this text  is after all, intended to form part of the law governing the telecommunications regulatory framework for the EU. 

Presidency (Council) proposed ‘compromise' amendment :

Article 20.1 (b)

- information on the conditions

regarding access to and/or use of

services and applications, including

information on any traffic management

policies and on how these may impact

on the delivery of the service.

New recital:

Traffic management policies are the

procedures put in place by the provider

in order to measure and control traffic

on a network link so as to avoid filling

the link to capacity or overfilling the

link, which would result in network

congestion and poor performance.

These policies are deemed appropriate

and reasonable as long as it can be

justified that they are not anticompetitive

or do not give preferential

treatment to the services or applications

of the network operators or their

commercial partners over the services

and applications from other providers

The UK proposed amendments:

New recital

"Traffic management policies, are an example of such limitations, which could

have an impact on the delivery of the service. Traffic management policies are

the procedures put in place by the provider in order to measure and control

traffic on a network link so as to avoid filling the link to capacity or overfilling

the link, which would result in network congestion and poor performance."

The text from a page about bandwidth management in Wikipedia :

bandwidth management is the process of measuring and controlling the communications (traffic, packets) on a network link, to avoid filling the link to capacity or overfilling the link, which would result in network congestion and poor performance.

 The Telecoms Package is the most important piece of legislation concerning the Internet, currently going through the European legislature. It will determine, among other things,   the way that the Internet will operate in the foreseable future. 

I have written a new paper which addresses some of the issues related to traffic management systems which will shortly be available.

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