Telecoms Package: A little extra effort required
Paris, March 2nd − Rapporteurs for the European Parliament on the directives of the Telecoms Package, have just released their draft reports for the second reading. Some improvements were made, like the reintroduction of amendments 138 & 166. About “Net discrimination”, the worst was avoided, but there is still a blatant lack for clarification and concrete guarantees that Telecom operators won't be allowed full control over the Internet. La Quadrature du Net calls IMCO and ITRE members to vigilance in order to “patch” the last loopholes left open in this text.
After months of opaque negotiations in “informal trialogues”, and intense pressure from lobbyists, the rapporteurs of the Telecoms Package directives, Malcolm Harbour (EPP, UK) and Catherine Trautmann (PSE, FR), finally settled on their second reading amendments to the Common Position of the Council. Significant progress were made on some regard, but some problematic and disturbing provisions still remain in the text.
La Quadrature du Net has anaysed these amendments1 and here is a summary of good and bad points:
- The anti-“three strikes” amendment imposing that fundamental rights and freedom could only be restricted by the judicial authority − the famous “Amendment 138 Bono/Cohn-Bendit/Roithová” adopted in first reading, now renumbered as Amendment 46 − is restored, in compliance with La Quadrature's recommendations.
- A very disturbing amendment (Amendment 45) reintroduces the notion of “lawful content”, even though it was stated multiple times that this wording was dangerous and targeted to copyright enforcement, and despite the fact that it was removed from most of the rest of the Package. As the rapporteur and the Council have stated, the Framework Directive has nothing to do with copyright. Therefore, we recommend to delete the word “lawful” from this amendment.
- Amendment 90 introduces some loopholes for “network discrimination”, by allowing restrictions on access to services and applications, which have to be rejected, and traffic management policies, which need some boundaries to safeguard “network neutrality” as suggested below for the Harbour report.
- Article 32a − previously Amendement 166 in the first reading − imposing the principles of proportionality, effectiveness and dissuasiveness is reintroduced. This is an important safeguard that is restored.
- The most problematic provisions allowing “net discrimination”, pushed by AT&T, were finally removed from the draft report. The vague notion of “network management policies” was removed2.
- On the down side, there still isn't a clear definition of what operators should be able to do with their networks in regard to these “limitations”, that could allow them to control their user's activity, as we demonstrated in a dossier sent to the rapporteurs3. We therefore ask for a clear definition of such non-discriminatory limitations4.
- Article 33.3 and recitals 20 and 23, laying grounds for “graduated response” or “three strikes” schemes, as confirmed by the EDPS5, are left unchanged in the text. We ask to remove these provisions.
Gérald Sédrati-Dinet, analyst for La Quadrature du Net, comments: “Since dangerous provisions have been introduced by the entertainment industry during committes' work on the first reading6, the Telecoms Package has been cleaner and cleaner at each step of the legislative procedure. Still, some stains remain to be washed...”
“We welcome the rapporteurs' efforts, but ask all the MEPs to go further in protecting European citizens' fundamental rights and freedoms. Members of IMCO and ITRE committees should watch carefully these amendements, and do what is necessary to finish the cleaning of the Telecoms Package, in order to make it the good, balanced and protective text we all want.”, concludes Jérémie Zimmermann, co-founder of La Quadrature du Net.
- 1. Full analysis can be found on http://www.laquadrature.net/wiki/Telecoms_Package_2nd_Reading_ITRE_IMCO_Draft_Amendments.
- 2. In favour of “any limitation imposed [by ISP] on a subscriber's ability to access, use or distribute information or run applications or services”.
- 3. See http://www.laquadrature.net/files/LaQuadratureduNet-20090218_net_discrimination-dossier_and_proposals.pdf.
- 4. In a new recital, or better, in a new article 22.4 stating that: “A limitation on a subscriber's ability to access, use or distribute information or run applications or services is deemed non-discriminatory when it is ordered by a decision from the judicial authority, or when users can deactivate it at no extra cost, or when it is a temporary, short term, response to malicious activity or unpredictable occurrence threatening the integrity or security of the network, or end-user security. Such limitation must always be carried out without giving priority to selected users or content/service providers.”.
- 5. European Data Protection Supervisor, see his latest comment on http://tinyurl.com/d628lq.
- 6. La Quadrature du Net has alerted on these dangers as soon as May 2008: http://www.laquadrature.net/en/privacy-film-industry-pirates-european-law.