The ghost of measures yet to come... Like a cyber version of Mr Scrooge, a Swedish MEP has been telling people they are seeing ghosts in the Telecoms Package. Are there ghosts in the Package? Or who has been misled?

'Ghosts in the Package' is  a quaint way of telling people they have been misled.   So, like any haunted house, the question is, do the  ghosts exist and what do they really tell us?

Ghost number one:  does the Package address the Internet?

The current ( 2002) Framework did not, but the 2009 Telecoms Package does, although it is an extension of the scope of the law, and arguably is unclear. However, the Framework Directive Article 8.2 does explicitly say:

"including in the  transmission of content" - a positive  reference to  the Internet. Arguably, too, the word "applications" used throughout the Package is a reference to the Internet, because the only public network these days, on which " users" will access "applications",  is the Internet.  

Amended 8th August: a reader has reminded me that the Internet is within the scope of the 2002 Framework but the important point is that it was limted to the conveyance of signals. See Article 2(a) and Recital 10 of the 2002 directive. 

Ghost  number two: where  does the Telecoms Package say that people will be cut off the Internet?

A European law may not order such a specific measure, for reasons of subsidiarity. Furthermore, broadband providers are "mere conduits" and governments may not give them a general obligation to monitor users.

However, if national governments should want to  specify ‘service termination' as a punishment for copyright infringement, the current  (2002)  Framework would need to change. The framework would need to say that broadband providers may impose restrictions via their contracts with end-users - and the  Telecoms Package does so ( Universal Services Directive, Article 20.1b , reinforced by Recital 22, 22a and b; Article 21.4;  Access directive Article 9.1, and Annex 1, point 19 of the Authorisation directive.)  

The rights-holder lobbyists who want graduated response / 3-strikes measures  have themselves made this argument very clear - their position paper submitted by the industry coalition Creative and Media Business Alliance  (CMBA) to the European Commission is available for download here .   Their text correlates remarkably closely  with the text of the amended directive. The CMBA  requested: "certain specific provisions that are always required to appear in consumers' subscriber contracts, in particular the conditions for termination of services - the obligation to respect intellectual property rights subject to suspension or termination of contracts for repeat infringers

The word ‘conditions' as used by the corporate lobbyists  is clearly defined as ‘termination or suspension' of Internet service, under an obligation not to infringe copyright. Now read the text of the directive: conditions limiting access to and or use of services and applications.  

The framework also needs to contain some kind of provision where broadband providers can be told to take responsibility for copyright enforcement, something which overrides the E-commerce directive, and the ‘mere conduit' provision. The Telecoms Package does so  (Universal Services directive, Article 33.3 ). The national regulators may be asked to oversee agreements between broadband providers and rights-holders.  ‘Co-operation' is the code-word here. It is not what the rights-holders originally proposed, but it is what they later got MEPs to table. See this letter from the SACD .

Ghost  number three: where does the Telecoms Package give any right  to governments to block the Internet?

The rapporteur Malcolm Harbour, switched an amendment to the Universal Services and Users Rights directive. He was mandated by the IMCO committee to strengthen a civil liberties amendment, but this was what was presented as the "compromise" in the last stages of the Second Reading. It was only voted in a block with the entire directive, and MEPs did not have a full  opportunity to scrutinise it. Many are probably unaware that it exists.

This is Universal Services and Users Rights directive Article 1.3. Note the same wording appears:

"This Directive neither mandates nor prohibits conditions, imposed by providers of

publicly available electronic communications and services, limiting users' access to

and/or use of services and applications, ..."  The fact that such ‘conditions' are not prohibited - they are not forbidden, and therefore they are permitted.

Article 1.3 clearly links the concept of ‘conditions' to another concept - ‘national measures'.  "National measures regarding end-users' access to or use of services and applications through electronic communications networks.."

The word ‘measures' means anything stipulated by the government that the industry must implement, in this case,  that governments may legally ask the industry to block websites, applications or services. It fudges - or makes unclear - the requirement to respect to the right to freedom of expression. From the information currently available, governments believe they can implement blocking to support copyright, under the terms of this  amendment.

There are two EU governments which have positive co-operation ‘measures' for copyright enforcement in sight - France, with the so-called Hadopi-2 law for 3-strikes, and the UK with ‘Digital Britain' for ‘technical measures'. Germany's CDU party has plans to follow, and the Italian and Spanish governments are understaood to be looking into it.

The so-called "compromise" on Amendment 138, would repeat this phrasing,  and in doing so, it would  seal in more securely the right of governments to bring in such "Measures taken regarding end-users' access to or use of services and applications through electronic communications networks". Under this "compromise" there would be,  right at the top of the Telecoms Framework, a provision  for governments to restrict communications services - which totally contradicts Europen communications policy to date, not to mention fundamental rights and democratic principles.

 This "compromise" was defeated in the Second Reading, but there are those, including the European Commission, who want to revive it.

And finally ...In fact,  the ‘conditions ‘ are  now being defined more broadly than just 3-strikes.  Given recent news reports,  it is entirely misleading of the European Parliament and its members to pretend that "conditions limiting access to and/or use of services and applications" means anything other than the use of network filtering techniques to block access to websites, applications and services. It is most likely that the first use of them will be blocking peer-to-peer services, as BT and others are already doing, and as evidenced by the recent court case against the Pirate Bay in the Netherlands .  'Conditions' will  be used to justify blocking Skype and other voice over IP services, as T-Mobile is already doing. They could also be used for measures to ‘protect the children', which, unless kept to strictly narrow criteria in relation to child pornography, is  a form of  censorship.

The UK government believes that what it calls ‘technical measures'  will be permitted.  The UK broadband provider  Karoo, is already cutting people off on the orders of the rights-holders, without any judicial oversight, or even accountability to a public authority. Private justice by automation. The ghost of measures yet to come...

It is not the users who have been misled, but the European Parliament who, like old Mr Scrooge seeing Marley's ghost,  refuses to face up to  the truth.

UK government document proposing the ‘conditions' wording.

Here is the text from the rights-holder lobby group, the CMBA, demanding changes to the Telecoms Package:

The European Union therefore urgently needs to take the opportunity offered by the review of the Telecom Package to put in place the right conditions for effective joint efforts by public authorities and stakeholders to tackle law enforcement needs ranging from “identity theft” to “infringement of intellectual property rights” and from “child pornography” to “credit card fraud”. In this context, the suppliers of services must be subject to obligations to respect relevant intellectual property rights and to enforce terms and conditions to suspend or terminate contracts with subscribers who repeatedly infringe intellectual property rights or commit other legal offences.

• The "Authorisation" Directive (2002/29/EC) - which enumerates in its annex a series of specific conditions that may be attached to the general authorisation that providers of electronic communications networks and services need to obtain - should be amended to include specific references to Directive 2004/48/EC (i.e. the so-called "Enforcement" Directive) and Directive 2001/29/EC (i.e. the so-called "Copyright" Directive).

•  The "Universal Service" Directive (2002/22/EC) should be amended by introducing in Article 20 (e) - which lists certain specific provisions that are always required to appear in consumers' subscriber contracts, in particular the conditions for termination of services - the obligation to respect intellectual property rights subject to suspension or termination of contracts for repeat infringers. There should also be a general provision linking universal service obligations to a general requirement to respect the law. Suspension or termination for repeat infringement should also be treated within the framework of the above-mentioned "Authorisation" Directive

• The "Access Directive" (2002/19/EC) should be amended by introducing in Article 12 (obligations of access to and use of, specific network facilities), the obligation for operators to enforce contractual conditions requesting subscribers to respect legal provisions and in particular relevant intellectual property rights.

This article is licensed under a Creative Commons Attribution Non-commercial-Share Alike 2.5 UK:England and Wales License. http://creativecommons.org/licenses/by-nc-sa/2.0/uk/ It may be used for non-commercial purposes only, and the author's name should be attributed. The correct attribution for this article is: Monica Horten (2009)Busting ghosts in the Telecoms Package , http://www.iptegrity.com 5 August  2009.