TNT blogArticle 1.3a, which replaces the glorious amendment 138, reveals strong and effective protections for european citizens against graduated response (3-strikes) and the ability to circumscribe blocks of services and applications. A great victory for european citizens, activists and Parliament.


Text to be inserted in Article 1:

“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.”

Provisions to Member States

Article 1.3a specifies in the first paragraph that the given provisions are addressed to Member States only. This is due to the strong opposition of the Council to avoid dispositions for National Regulatory Authorities. The paragraph is highly relevant because it states the principle according to which the Internet is a key instrument for the practical exercise of certain fundamental freedoms.

To bypass the aforementioned limitation, the Parliament used 3 elegant systems which extend to private actors precise provisions in defense of citizens:

- the text in the second paragraph has been modified from “Any of the above measures” to “Any of these measures” and, as an added protection for citizens, it is stated that even their implementation shall respect the provisions;

- the respect of the right to privacy is explicitly imposed;

- a “connection” between provisions of articles 21.3(b) and 20.1(b) of universal service and users’ rights Directive (2002/22/EC) is created.

Net Neutrality: Articles 21.3(b) and 20.1(b) 2002/22/EC (amended – Harbour report)

The above articles force connectivity providers to inform users about “conditions limiting access to or use of services and applications, where such conditions are permitted under national law in accordance with Community law“.

By extending to the jurisdiction of the Community law, thanks to art.1.3a of framework directive, measures regarding end-user’s access to or use of services and applications through electronic communications, and by stating that such measures must respect the European Convention for the Protection of Human Rights and Fundamental Freedoms and the general principles of the Community law, the Parliament puts limits to Net Neutrality violation. Therefore, the dangerous “AT&T amendments” are weakened.

If a measure liable to impose limitation in the access to or in the use of services and applications hinders any of the end-users’ rights ratified by the Community law and/or by the Convention, that measure is illegal, without regards to anticompetitive practices.

It is very relevant that Net Neutrality guarantees freedom of expression and information. So, complete blocks of certain services and applications may heavily harm those freedoms, protected by the Convention, therefore connectivity providers can not put them into effect. In the mentioned services and applications, World Wide Web access, end-to-end connectivity and p2p networks access are of paramount importance.

Right to privacy

The explicit provision which forces to respect the right to privacy reaches a double aim.

First, IP harvesting by private companies which monitor p2p network looking for possible copyright infringements is forbidden. Those companies, with a mandate of antipiracy associations, use to try and correlate, through voluntary or forced ISP cooperation, IP address to the identity of the Internet access owner who become a suspected copyright infringer. Then, the user is threatened and offered an extra-judicial arrangement through a money payment.

The sentence of the Austrian Supreme Court on the case Tele2 vs. LSG is extremely important since it has been issued on the basis of the opinion of the European Court of Justice. LSG had collected IP addresses and required Tele2 to disclose related customers identities. Tele2 argued that it could not legally give those data, because they are traffic data protected by e-privacy Directive. According to ECJ and the Austrian Supreme Court, actually the IP address is essential to give connectivity services and as such it is protected by article 6 of ePrivacy Directive (2002/58/EC). It must be wiped out or anonymized when it is no more necessary for the connection course. Note that the ePrivacy Directive is one of the 5 directives of the Package and that article 6 has not been modified.

For the very same reason, article 33(3) of universal service Directive (2002/22/EC) which encourages private cooperation amongst ISPs and copyright holders, must respect the right to privacy. Thus it loses its negative impact.

Second, the technical implementation of the so-called HADOPI 2 law in France is hampered. Actually, the law implementation will be attempted with the engagement of private companies which will connect to p2p swarms through modified clients in order to collect as many IP addresses as possible. Even though those companies will be delegated by an authority which, in turn, is authorized by the government, the technical implementation of HADOPI 2 does not appear compatible with the framework Directive and the aforementioned ePrivacy Directive.

Prior, fair and impartial procedure, and appeal

In this text we have a clarification that a process must be preceded by an investigation in which the burden of proof must be established and where it is possible to exercise the right to defense. The principles of community law provide that the “right to be heard” includes, among other things, the right to a legal representation that must be fully exercised. This right does not appear to be respected by the so-called French law HADOPI 2, where it provides a “fast-track process”, a period of 5 minutes in which the suspect may make a statement.

The wording “prior ruling of judicial authorities” of the original amendment 138 could not be used, because of the strict opposition of the Council and of the report of EP legal services. Parliament Conciliation Committee members gave a definition of “procedure” as clear as possible.

It must be a fair and impartial process which is previous to the sanction and it must be “guaranteed”, not only “respected” (“respected” might have left open legal loopholes: actually the Council pressed in favour of the word “respected” against “guaranteed”), and it:

* must respect the legal principles of the Community law;
* must respect the right to be heard and presumption of innocence;
* must respect the European Convention for the Protection of Human Rights and Fundamental Freedoms and its procedural guarantess;
* must include a preliminary investigation which can not be based upon elements obtained violating the right to privacy;
* must impose sanctions which are appropriate, proportionate and necessary within a democratic society;
* must guarantee the right to appeal against the sentence.

Therefore, the Parliament defined the minimum requirements for an ordinary judicial court.

Exceptions for urgent cases

The Convention provides suspension of fundamental rights only in time of war or other public emergency threatening the life of the nation. Exceptions are linked to the Convention for the Protection of Human Rights and Fundamental Freedoms, therefore all other cases are ruled out.

HADOPI 2

A deeper analysis between the correlations with HADOPI 2 must be made by our French friends, but from our analysis some serious problems of incompatibility between HADOPI 2 and the Telecoms Package emerge. However, Member States from the date of the final adoption of the Package, will have 18 months (plus the time for the official publication) to transpose its directives into national laws. In this period, the French government could simply ignore the incompatibility and proceed with HADOPI 2. This is therefore a rather theoretical case, because it is highly likely that well before the eighteenth month HADOPI 2 will have already collapsed on itself, showing all its impotence in the repression of piracy online without profit.

General principles of the Community Law and the Lisbon Treaty

In december 2009, when the Lisbon Treaty comes into force, the three pillars of the Union (of which the Community is the first), will be merged, and the Charter of Fundamental Rights of the European Union will become a full part of the general principles cited in art. 1.3a. Under some aspects, the Charter improves and reinforces the Convention.

Conclusions

In this article you can find many of the expectations that were inherent in the amendment 138, so we understand the joy of Christian Engstrom and Lena Ek about the acceptance by the Council. The article resumes the substance of amendment 138 and extends the right to privacy.

With regard to the Net Neutrality, this article attenuates the block conditions under certain circumstances, using a very elegant system that turns the same articles proposed by the telcos against themselves. But there are thinner limitations (prioritization, cap and so on) that can not be prevented by this text. The road to the protection of Net Neutrality in Europe is therefore still uphill.

Article 1.3a, however, appears to be an effective prohibition against the graduated response (3-Strikes) as it is now proposed by some European governments.

Acknowledgements

We warmly thank european citizens who in these years of battle on the Telecoms Package have contributed actively with personal commitment to make MEPs understand the stakes, helping them to decide for the best. We also thank all those Members of the Parliament and their assistants who have been open to dialogue with non-governmental organizations and have frankly discussed and often held in high esteem all the opinions. We are deeply grateful to the several lawyers from across Europe who have given us opinions, suggestions and invaluable advice throughout the legislative process of the Telecoms Package. Finally, we want to send a special greeting and a hug to all activists in Europe who have spent so many sleepless night with us working side by side or in the Net for the passion and love we all have for the Internet.

In the end, we’ll win.

First they ignore you, then they laugh at you, then they fight you, then you win.


Mahatma Gandhi

Translation into English by Marainos

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