Digital Civil Rights in Europe

Article published in EDRi-gram 7.9, 6.05.2009

Today, 6 May 2009, in the second reading of the Telecom Package, the European Parliament (EP) voted again for the initial amendment 138, with an overwhelming majority of 407 votes for and just 57 against the proposal. However, on this same occasion, the EP rejected the amendments that would make “network neutrality” principles mandatory.

Although initially MEP Catherine Trautmann’s report included the original amendment 138/46 as adopted in the first reading by the European Parliament, after the opaque negotiations with the EU Council from the past 2 weeks this amendment had been changed in a weaker version. The initial text “without a prior ruling of the judicial authorities, notably in accordance with Article 11 of the Charter of Fundamental Rights” was replaced by “and the right to a judgement by an independent and impartial tribunal established by law and acting in respect of due process in accordance with Article 6 of the ECHR.”

Although the new French authority (called Hadopi) that could be established by the three strikes French draft law can’t be considered a “tribunal established by art 6 of ECHR”, the text left room to more fuzzy interpretations by removing the wording “prior ruling”. Thus the compromise text could be interpreted that such an authority could take a decision of cutting one’s access to Internet, but one would be allowed to go to court to challenge this decision.

But the EP decided that the initial amendment 138 needed to be supported once again. The battle was not easy, though. MEP Rebecca Harms insisted in the plenary for the change in the voting list and for having the original amendment 138 first . Her position was supported by MEP Alexander Alvaro and disagreed by the Rapporteur MEP Catherine Trautmann. The Chairwomen Diana Wallis agreed to go on first with the vote on the Amendment 138. 407 votes from MEPs supported the amendment, thus saying NO to 3 strikes in Europe. Again.

Also the report of Malcolm Harbour (PPE/ED – UK) changed the initial amendment 166 adopted in the first reading by the EP that established a clear principle of the Internet neutrality. Now the main protection left is customer information through contracts, but consumer and competition law cannot regulate fundamental rights.

The new compromise with the Council that includes the text “limitations on access to and/or use of services and applications” is far from the initial amendment 166 that was clear: “Member States shall ensure that any restrictions on the rights of users to access content, services and applications, if such restrictions are necessary, are implemented by appropriate measures, in accordance with the principles of proportionality, effectiveness and dissuasiveness”

In fact, Mr. Harbour, in an interview published one day before the final vote on the European Parliament website, described as “pure fantasy” the statement that new rules would allow conditional access. “There is absolutely nothing in this proposal that says anything about that,” he claimed.

But Mr Harbour was contradicting himself just a couple of weeks earlier when he declared publicly that there were service limitations in his own report: “On the question of network neutrality, so called, which I think has been vastly over-inflated in all of this debate, the Commission has quite rightly identified the fact that there is a potential – a potential – for operators to use differing quality of service provision in a discriminatory way, for example, by giving a higher capacity or better service quality to their own services as opposed to those of competitors. The commission made a proposal, the council amended that and we agreed.

But the fact remains that any other service limitations which are anti-competitive, and they could certainly include restrictions on access to competitive services like voice over IP, have and can be dealt with by the regulators under the existing framework of competition and access regulation. And that is clear. But what is fundamental is that customer needs to know if there are service limitations and customers may wish to buy a package with service limitations if it is cheaper…There is nothing illegal about service limitations, provided they are not anti-competitive…”

The initial amendments voted in the first reading by the EP, were back on the European Parliament agenda under the name of Citizens Rights Amendments proposed by Eva-Britt Svensson on behalf of the GUE/NGL Group together with other support from other MEPs.

But besides the amendment that re-instated article 138, all the other citizen rights amendments were rejected by the plenary of the EP. Thus, the Harbour report was adopted and the Trautmann report was rejected.

The discussions with the Council will continue and should lead to a third reading at least for the Trautmann Report. But at the same time, there are little chances for something to be changed in relation with the articles on “network neutrality”, that would become part of the directive.

“Internet has to be free, but not regulation free” – Harbour on telecoms package (5.05.2009)

Ask MEPs to adopt Citizens’ Rights Amendments on 6 May (5.05.2009)

Citizens rights amendements

EDRi-gram: European Parliament ITRE committee votes against the 3 strikes (22.04.2009)

Telecoms Package: When rapporteurs betray EU citizens (30.04.2009)…

Agreement on a new version of amendment 46/138 in Brussels. The European parliament accepted a weaker text (29.04.2009)…

Telecoms Package – a licence to chill (4.05.2009)…

Amendment 138/46 adopted again. Internet is a fundamental right in Europe (6.05.2009)

European Parliament rejects Telecoms Package (6.05.2009)…

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