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'No' to content gatekeeping by ISPs. A higher privacy barrier for copyright policing.

Two pieces of good news for the Internet have emerged from the EU in the past 7 days. They arise out of two entirely separate processes, but both indicate a mood of distaste for corporate control of the Internet. Last week, the European Parliament voted in favour of a net neutrality law; this week the European court of Justice ruled that a law on the collection of telephone and Internet metadata is invalid.

The European Parliament's First Reading vote in favour of net neutrality in the Telecoms Regulation (Connected Continent*) came as a surprise. It was certainly not an outcome that one would have placed bets on. The lobbying against it by the telecoms industry is particularly strong.

It means that Europe could get a law that underpins freedom of communication on the Internet. It will provide a barrier to the kind of corporate gatekeeping the increasingly looms as a threat.

The European Parliament actually voted for an amendment inserting a net neutrality principle into the law. The principle reads:

"net neutrality" means the principle that all internet traffic is treated equally, without discrimination, restriction or interference, independent of its sender, receiver, type, content, device, service or application;"

The net neutrality principle was tabled by the French Socialist MEP and former French culture Minister, Catherine Trautmann. It was Catherine Trautmann who set off the whole process of net neutrality in European law, with a deal that concluded the 2009 Telecoms Package. (See my book The Copyright Enforcement Enigma - Internet Politics and the 'Telecoms Package' )

The European Parliament additionally voted for amendments that place stronger caveats around traffic management practices by ISPs. These amendments seek to preclude ISPs discriminating against particular content or services, and provide a tougher legal environment for those that want to do content deals. ( See EU Parliament net neutrality battle comes to a head )

All of these amendments were adopted with a fairly narrow majority. It was only possible because some EPP members sided with the Socialists, Liberals and Greens.

All the British ECR members voted against the net neutrality principle and traffic management amendments. One presumes they voted to support the British government's attempt to impose content filtering for parental controls, although it is also believed they wanted to support the Internet Watch Foundation.

Of course, all those involved are trying to put the best spin on it. The Rapporteur, Mrs Del Castillo, spoke only of the proposal to remove roaming charges, and conveniently left out net neutrality. The Commission is pretending this is what it wanted all along. And even our own Ed Vaizey, despite his government's negative position, tweeted cheerily about the Europe voting for net neutrality.

This outcome means that the next round - the Second Reading in the European Parliament - could get exciting, as the Socialists will want to maintain their majority. There will be hard lobbying against it ( see this article from TelecomTV on ETNO's reaction). However, before the Second Reading, the Council of Ministers will have to produce its position on the entire Connected Continent proposal. My understanding is that the Council will go through the Commission's draft clause by clause. This could take a long time and could indeed be a delaying tactic. (For more on the processing of European telecoms law, see my book on the 2009 Telecoms Package: The Copyright Enforcement Enigma - Internet Politics and the 'Telecoms Package' ).

The ruling on the Data Retention directive (2006/24/EC) by the European Court of Justice was perhaps not quite such a surprise, since the Advocat General's Opinion has previously been released. However, it may have more immediate effect.

The ruling says that the Data Retention directive is disproportionate, because it fails to limit the collection of communications metadata (including email medatadata) , and it fails to constrain the access to the stored data or to offer safeguards from possible abuse. Under the Data Retention directive, metadata is collected by the ISPs on behalf of national governments. Metadata does not reveal the content of communications, but does say who, what, when, where and how the communicated, and in that sense, may reveal a lot about an individual. There are other, non-government interests who want to get their hands on this data, notably, the copyright industries.

Specifically, the ECJ ruling says that the directive is problematic because it covers

"in a generalised manner, all individuals, all means of electronic communication and all traffic data without any differentiation, limitation or exception".

The ECJ ruling also says that the Data Retention directive does not require data to be retained within the EU, and in that respect too, it fails to provide for the protection of data of European citizens.

The ruling is relevant in light of the Snowden revelations about NSA and other intelligence agency surveillance of Internet users. The primary tool for intelligence agency surveillance is the communications metadata. It would suggest that the kind of mass surveillance revealed by Edward Snowden's leaked documents must surely be illegal. And corporate compliance with such requests could also be questioned. Hence, the ruling could serve to protect freedom of expression by protecting our right to speak without our data trails being hoovered up by governments.

An interesting side-effect is that it puts yet another spoke in the wheel of the copyright industries, who are desparate to get hold of the metadata in order to apply Internet copyright enforcement measures, such as 3-strikes and notification systems, whether statutory of voluntary. Thus far, EU law has declined to put copyright on the list of reasons for access to the data, and this ruling would seem to underpin that.


*The full title of the Telecoms Regulation is the Proposal on a European single market for electronic communications and to achieve a Connected Continent.

This is an original article from Iptegrity.com and reflects research that I have carried out. If you refer to it or to its content, please cite my name as the author, and provide a link back to iptegrity.com. Media and Academics - please cite as Monica Horten, 2013, Net neutrality & data retention - Europe pushes back against a corporatised Internet in Iptegrity.com 9 April 2014 . Commercial users - please contact me.

If you liked this article, you may like my book The Copyright Enforcement Enigma Internet Politics and the Telecoms Package.

Tags: EU Telecoms Regulation, European Commission, European Parliament, Connected Continent, net neutrality, Pilar del Castillo, ITRE, IMCO, Telecoms Package, data retention directive, metadata, eu, law, commission, council, snowden, ECJj, European court of justice.


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About Iptegrity

Iptegrity.com is the website of Dr Monica Horten. I am an  independent policy advisor: online safety, technology and human rights. In April 2024, I was appointed as an independent expert on the Council of Europe Committee of Experts on online safety and empowerment of content creators and users. I am a published author, and post-doctoral scholar. I hold a PhD from the University of Westminster, and a DipM from the Chartered Institute of Marketing. I cover the UK and EU. I'm a former tech journalist, and an experienced panelist and Chair. My media credits include the BBC, iNews, Times, Guardian and Politico.

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