Landmarks in the Telecoms text

EP delegaton meeting

Article 1.3a in the Telecoms Package was the battlefield in the struggle between the European Parliament and the Council of Ministers.

The Parliament wanted the article to be as ”Hadopi proof” as possible. That means it should prevent Member States from introducing laws to shut people off from the Internet without even a decision by a court.

The Council resisted, but the Parliament won in the end. The text that was adopted as article 1.3a in Wednesday evening’s conciliation meeting is a good step in the direction of a free and open Internet.

I will go through the text of the article, to point out important features of the battlefield landscape. Here is the full text for reference, with certains words highlighed to act as landmarks:

Article 1.3a:

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.

I will comment on the landmarks in the text in the order they appear.

1. Member States

The first paragraph essentially says:

3a. Measures taken by Member States regarding end-users’ access … shall respect the fundamental rights

Because of the phrase ”by Member States” in the beginning of the first paragraph, that paragraph only limits what the member states themselves can do. This weakens that paragraph, so that it no longer says that private companies, like for instance Internet Service Providers, have to respect the fundamental rights, like for instance the right to a proper trial or the right to information freedom.

This is unfortunate, but the parliament delegation was very aware of this problem. It was discussed quite a lot in the context of the second paragraph. It would obviously be no use if Member States that want to legislate to shut people off from the Internet could circumvent all the protections in the article simply by forcing the Internet Service Providers to do the dirty work for them.

2. these measures

The easiest and best solution would have been to simply remove the phrase ”by Member States” from the first paragraph, but this did not happen (because it was assumed that the Council would oppose that).

Instead, the second paragraph was amended in two ways, to close this loophole. First, the second paragraph starts with the rather clumsy wording

Any of these measures regarding end-user’s access to or use of services and applications through electronic communications networks…

instead of

Any of the above measures…

which the Council wanted. The purpose of the clumsier wording is to include measures taken by other parties than the Member States as such.

3. their implementation

As an extra safeguard, the words ”their implementation” were inserted a little later in the same sentence, to yield

…and their implementation shall be subject to adequate procedural safeguards…

This means that even if Member States want to implement measures by forcing the ISPs to shut people off from the net, they cannot becaue of this clause.

4. presumption of innocence

The next sentence in the second paragraph starts with

Accordingly, these measures may only be taken with due respect for the principle of presumption of innocence…

The presumption of innocence phrase is a quite central part of the Hadopi protection. Instead of being punished by being shut off from the net just because some big company came along with an accusation, users must be presumed innocent until they have been proven guilty.

Although the word ”court” is not used, the wording very strongly suggests that some sort of court should be involved.

5. right to privacy

…and the right to privacy.

To bring in the right to privacy in this context is perhaps somewhat surprising, but it is actually quite clever.

The corporations that are pressing for Hadopi style laws in various countries do this with a strategy in mind. They want to be able to set up procedures to send out threatening letters and demands for money to a large number of people, in a manner that is as convenient as possible (for them).

Since we may be talking about tens of thousands of letters per month to get the deterrent effect that they want (or the money they want to collect), they want to automate it.

But this of course means that they would be infringing people’s right to privacy. By explicitly saying that this is not allowed, this provides an extra safeguard for net users.

6. prior

A prior fair and impartial procedure…

This is the very core of the whole article. ”Prior”. The tiny little word that the Council of Ministers has spent six months trying to get rid of. But there it is, in what is now the final text. This is a victory.

It would, of course, have been better if it had said ”a prior ruling by an independent and impartial tribunal established by law”. That would have been a direct quote from Article 6 of the  European Convention on Human Rights, which all member states are already signatories to anyway.

But wishing is one thing. To get it, turned out to be another. A ”prior fair and impartial procedure” was as close as we got. And together with the other key phrases in the text, I think there is little difference in practice. It is just messier language.

7. guaranteed

…shall be guaranteed,

This was another bone of contention. The Council preferred the word ”respected”, which would have been weaker, but in the final text is says ”guaranteed”. Good.

8. right to be heard

including the right to be heard

This is an important requirement. It means that it is not enough to institute some special court that just rubber stamps summary judgments without giving the accused a chance to defend himself.

This is a big obstacle to the film and record companies that want such laws, and to the politicians that want to do their bidding.

9. urgency

The last landmark is a limitation on the guarantees that the article gives Internet users. It says that the guarantees only apply…

… 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.

– Is this a potentially dangerous loophole? Will it allow record companies to claim that there is an urgency because they are not making as much money as the would like to, and that all the guarantees therefore have to be abandoned?

No. It is perfectly reasonable (and indeed quite necessary) to be pretty paranoid when trying to decipher texts like these, but this provision should be quite safe. This is because it is explicitly tied to the the  European Convention.

The only article in the Convention that provides an exception is Article 15, which deals with national emergencies like war or natural disasters:

1. In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law.

Not even terrorism or other serious crimes qualify as grounds for using this provision, and most certainly not file sharing. This exception is harmless.

10. Conclusion

This is not a perfect text. It is not what I would have proposed if could write it myself, free from any political constraints. But it is good enough to be a step in the right direction.

The biggest problem with Article 1.3a is its limited scope. Proper judicial procedures is one thing. That should have gone without saying.

But we want all our rights respected on the Internet, just like in the rest of our lives. We want the freedom to receive and impart information and ideas without interference by public authority and regardless of frontiers. We want  respect for our private and family life and our correspondence, in the electronic world as well as elsewhere.

We have a lot of battles to fight before we can say that we have secured a free and open net, where our civil liberties are respected.

But, now, I’m looking forward to those battles.

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