The Hadopi test for the Telecoms Package

Hadopi in the details

The European Parliament‘s delegation to the Telecoms Package conciliation process had a stormy meeting last Tuesday. It then adopted a text to serve as the basis for the continued negotiations with the Council of Ministers.

On Thursday, the Council replied by proposing a modified version of that text. I called their proposal ”An insult to the Parliament”.

The Parliament’s text tries to stop Member States from creating laws and institutions to shut people off en masse from the Internet, without even a proper trial before it happens. The goal is to stop things like the French Hadopi law, or similar laws that are currently being prepared in the UK.

The Council of Ministers wants to leave the door open for Member States to introduce such laws.

To understand how, it is necessary to compare the two texts quite carefully. If you just read them through quickly, they both sound pretty good on the surface, and more or less similar. But they aren’t.

I will go through the beginning of the text and point out what the various changes that the Council insisted on actually mean, and why the difference between the two versions is the difference between a yes or a no to Hadopi laws.

The Council’s proposal looks like this, compared to the Parliament’s text:

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 the above measures liable to restrict those fundamental rights or freedoms may therefore only be taken in exceptional circumstances and imposed if they are appropriate, proportionate and necessary within a democratic society, and 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. In particular, any These measures may only be adopted as a result of a prior, shall respect the requirements of a fair and impartial procedure ensuring inter alia that the principle of presumption of innocence and including the right to be heard of the person or persons concerned be fully respected. Furthermore, and the right to an effective and timely judicial review shall be guaranteed.

This shall not affect the competence of a Member State, in conformity with its own constitutional order and with fundamental rights, inter alia, to establish a requirement of a judicial decision authorising the measures to be taken and to adopt urgent measures in order to assure national security, defence, public security and the prevention, investigation, detection and prosecution of criminal offences.

Let’s go through a few of the changes, to see what their hidden meaning is.

We’ll start at the very first line:

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

The phrase ”by Member States” was not highlighted as a difference above, because it’s in both the Parliament and Council versions. But it was discussed in the delegation meeting, when it was suggested (I think by Lambrinidis, who is the good guy here) that the words should be taken out.

They weren’t, but if they had, that would have made the Parliment’s text a stronger protection against Hadopi laws.

– Why?

Well, without the ”by Member States” phrase, the first sentence would have said that measures by anybody should respect the fundamental rights. But with the insertion, the restriction only applies to the Member States themselves. Then 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.

Because of the added ”by Member States”, you can no longer argue that the sentence prohibits a practice where people formally are shut out from the internet by their ISP. The sentence becomes less Hadopi-proof.

The very same issue comes to the surface in the first change that the Council made, in the first line of the second paragraph:

Any of the above measures liable to restrict those fundamental rights…

Here, the Council inserted ”of the above” into the text. That means that whatever (good) guarantees for net users may be listed in the rest of the sentence, those guarantees only apply to actions taken by the Member States as such. Private companies are not bound by whatever the rest of that sentence talks about, thanks to the addition of ”of the above”.

Exaktly this point was discussed in the delegation meeting, where Lambrinidis suggested, and got the chairman to agree, to remove the word ”such” from exactly the same position where the Council later reinserted the ”of the above”. In this context the two phrases produce the same meaning.

The next difference comes a little later in the same sentence. Talking about measures to restrict people’s access to the net, it says that they

…may therefore only be taken in exceptional circumstances and imposed if…

First, there is the ”therefore” that the Council added. It weakens the wording a bit by suggesting that the rest of the sentence doesn’t really add anything new, so you could just as well ignore it. This weakens the text, but I’m not qualified enough to say by how little or how much. Professional lawyers would probably disagree with each other as well (depending on which side they happened to be representing 😉 ).

The big one in this segment is that the Council took out the bit about these measures only being applied in ”exceptional circumstances”. This was an amendment suggested by Lambrinidis and accepted by the delegation. I was really pleased when it got inserted into the text. It came as no surprise at all when the Council got rid of it again.

I believe that the phrase ”exceptional circumstances” would have been a very effective Hadopi killer. Of course the Council wouldn’t let it stand.

The whole purpose of an Hadopi system is to be able to shut off a large number of suspected file shares with as little legal fuss as possible. The system is specifically designed to handle the large number of cases necessary to make getting caught a real risk for ordinary people.

Nobody can claim that something that millions of people do on a daily basis constitutes ”exceptional circumstances”. But the Council’s lawyers spotted this right away, of course, and removed the phrase in their proposal.

Then it goes on like this with the rest of the differences. What may seem like pretty innocent changes on the surface, turns out to have vast legal implications when you look at them more closely.

I won’t go through the rest of the differences here, but I hope this demonstrates the principle. You have to think really carefully before you can feel sure that you know what each modification of the text really means. The devil is in the details.

The only thing you can be really sure of, is that there is a purpose behind each of the Council’s changes in the text, and that their lawyers know exactly what they are doing. But this is for the rest of us to figure out.

I’ll end with a disclaimer. The above is what I believe that the differences mean. But reading texts like these is a really tricky business. It is quite possible that I have gotten some things wrong, and even more likely that I have completely missed certain implications of the various wordings.

But that’s what comment fields and swarm work are for. Please feel free to post comments on the analysis.

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