Europe’s ‘Three-Strikes’ Law, Telecom Revamp Set for Reconciliation
Two measures relating to Internet access termination of copyright pirates are moving, one in France and the other in the EU. A revised version of the controversial Creation and Internet law -- which sets up a “three-strikes” regime where suspected infringers are notified, warned and, potentially, blocked from Internet access -- won approval from France’s lower house this week and must now be reconciled with Senate- passed legislation, said Jeremie Zimmermann of French civil liberties group La Quadrature du Net. Meanwhile, the EU Council of Ministers and Parliament are preparing to resolve the impasse over a provision in the telecommunications reform package barring restrictions on Internet use without a court order, an Industry Committee spokeswoman said.
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French President Nicolas Sarkozy’s government has pushed the graduated response measure, called “HADOPI,” for several years. It originally allowed a new anti-piracy body that it would create to order access termination, but the measure was changed to require a judge’s order after the Constitutional Council ruled the original provision unconstitutional (WID June 11 p6).
The reconciliation is just a formality, and the Assembly version is likely to win, Zimmermann said. The legislation then goes back to both chambers for a formal vote “where there won’t be any surprise,” he said. That will be followed by another constitutional challenge, he said.
The lack of a court order for Internet cut-off wasn’t the Constitutional Council’s only concern, Zimmermann said. The decision, as translated, says any restrictions on the exercise of freedom of expression and communication must be proportionate to the purpose they seek to achieve. Parliament didn’t have the right to allow an administrative authority to order access termination to protect content owners, it said.
The decision also faulted HADOPI as not respecting the presumption of innocence and the right to a fair trial, Zimmermann said. The expedited judicial procedure in the revised bill provides for only one judge, no hearing, and only evidence collected by private actors and validated by the administrative agency, so it still may not pass muster, he said.
As a “vital and ambitious follow-up” to HADOPI, the French government is seeking input on how to “rethink the Internet” to benefit creators and consumers, indie music lobby group IMPALA said on Wednesday. The mission, headed by IMPALA co-President Patrick Zelnick, will report to Sarkozy in November.
In May, EU lawmakers blocked the overhaul of Europe’s e- communications rules by adopting a measure, known as Amendment 138/46, prohibiting governments from restricting Internet users’ fundamental rights and liberties “without a prior ruling by the judicial authorities … save when public security is threatened” (WID May 7 p1). The entire package now moves to conciliation.
Governments and lawmakers are preparing for talks, the industry committee spokeswoman said. Lawmakers appointed Alejo Vidal-Quadras, Group of the European People’s Party, Spain, to head their delegation to the conciliation committee, she said. The Parliament and Swedish EU Presidency will set a provisional timetable for informal and formal meetings in coming weeks, she said. The parliamentary delegation, consisting of 27 MEPs from all political groups, will be formed sometime during the week of September 28, she said.
The Council wants negotiations to focus only on Amendment 138, while some MEPs would like to reopen net neutrality issues as well, said Ilsa Godlovitch, European Competitive Telecommunications Association regulatory affairs director. The associatioin is neutral, she said: “We just want the package closed.”
Some MEPs apparently believe that EU rules allow operators to do whatever they want with their networks, including blocking or filtering, a telecom industry source said. The regulatory framework probably simply recognizes that operators already “shape” Internet traffic for network reasons, the source said, but the question of whether it also permits shaping for anticompetitive or anti-consumer reasons may be a grey area to be resolved by the European Commission.
Some lawmakers may be trying to use the net neutrality issue as a trade-off in case they lose on Amendment 138, the source said. The parliament doesn’t want to block telecom reform but to make defeat on 138 less harsh. It may try to compensate on the net neutrality issue so it can show consumers it accomplished something, the source said.
Network neutrality is “under the threat of telecom operators and content industries” that see business opportunities in discriminating, filtering or prioritizing information flowing through the pipes, La Quadrature said on Wednesday in an open letter to the European Parliament. No court or regulator appears to be able to counter such behavior and some provisions in the telecom package could encourage it, the organization said. It urged MEPs to “take decisive action” during the conciliation process to guarantee a free, open and innovative Internet and safeguard Europeans’ fundamental freedoms.