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European 'internet freedom' law agreed

Lawmakers agree to protect internet users from disconnection without due process, a move that means a raft of EU telecoms reforms can pass into law
Written by David Meyer, Contributor

Europe is set to get a major overhaul of its telecoms regulation, after the European Parliament and Council of Telecoms Ministers reached a compromise on the rights of internet users across the continent.

The Telecoms Reform Package is a raft of new laws that tackle issues ranging from data-breach notification to faster number porting. Following an agreement reached on Wednesday night, the package will now become part of national legislation in every EU country, with a deadline of May 2011.

A version of the package was passed by the European Parliament in May. However, it was rejected by the Council of Telecoms Ministers, because it contained a provision, Amendment 138/46, that would have made it impossible for member states to enact 'three-strikes' laws. Three-strikes legislation lets countries disconnect internet users who are suspected of the unlawful file-sharing of copyrighted material, such as music or movies, after sending them two warnings.

Amendment 138/46 became the only sticking point in the package's progress. The matter was turned over to delegates from the European Parliament and the Council of Telecoms Ministers, who negotiated a compromise text for the clause. The reworked amendment is now Article 1(3)a of the Framework Directive, one of the five directives that forms the package.

Internet freedom provision
The conciliation process that led to the agreement was shepherded by the European Commission. In a statement on Thursday, telecoms commissioner Viviane Reding welcomed the agreed "internet freedom provision", which she said had gained the unanimous support of all negotiators.

"This internet freedom provision is unprecedented across the globe and a strong signal that the EU takes fundamental rights very seriously, in particular when it comes to the information society," Reding said.

She added that the Telecoms Reform Package as a whole would "substantially enhance consumer rights and consumer choice in Europe's telecoms markets, and add new guarantees to ensure the openness and neutrality of the internet".

The new article states that any measures taken by member states to limit internet access or use must "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".

It also says any access or use limitations must be "appropriate, proportionate and necessary within a democratic society", and their implementation must include "effective judicial review and due process".

'Fair and impartial procedure'
"Accordingly, these measures may only be taken with due respect for the principle of presumption of innocence and the right to privacy," the text adds. "A prior fair and impartial procedure shall be guaranteed, including the right to be heard of the person or persons concerned... The right to an effective and timely judicial review shall be guaranteed."

The consumer rights group La Quadrature du Net (La Quad) pointed out on Thursday that the agreed text speaks of "a prior fair and impartial procedure". That contrasts with the original Amendment 138's guarantee that a court would need to issue an order before an individual could have their internet connection cut.

La Quad also said arguments against national three-strikes policies would now depend on how the European Court of Justice and national courts interpreted the new article.

"Despite its lack of clarity and ambition, this text does provide legal ammunition to continue the fight against restrictions of internet access, La Quad co-founder Jérémie Zimmermann said in a statement. "The agreed text does not meet the challenge of clearly preserving a fundamental right of access to the net. Threats to internet freedom still loom."

The European Parliament issued a statement on Thursday in which it said there had been "serious doubts" about the legal validity of the original Amendment 138, as it would have required all the national judicial systems across Europe to be harmonised — a situation that stretches beyond the European Community's legal powers.

"Consequently, if the old amendment had been adopted, the European Court of Justice might have annulled the electronic communications framework directive at a later stage," Parliament's statement read.

Apart from the internet freedom provision, other key elements of the Telecoms Reform Package include: the right of European consumers to change, in one working day, fixed or mobile operator while keeping their old phone number; powers for national telecoms regulators to set minimum broadband quality levels, so as to stop ISPs degrading certain types of traffic; and mandatory notifications for personal data breaches suffered by communications providers.

A new European Telecoms Authority (Berec) will also be established, and national telecoms regulators will gain greater independence. The package also lays out rules for the deployment of national fibre-access networks, and allows the 'digital dividend' spectrum — freed up by the switch from analogue to digital TV — to be used for mobile broadband services.

Within the next six weeks, the EU Parliament and Council will need to formally vote through the agreed text of the internet-freedom provision. The whole Telecoms Reform Package can then pass into law early next year. After that, the package will have to become national law in each member state by May 2011.

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