EU Council revisions maintain its ongoing effort to turn the Telecoms Package into an enabling law for Hadopi-style administrative justice in Europe.

The fight between the European Parliament and the Council over Amendment 138 is becoming rather like a game of political Scrabble, where the words are added and subtracted to alter the meaning, and the scores are re-counted. At stake is the right of European citizens to access and distribute over the Internet versus the creation of Hadopi-style administrative justice.

The outcome of the Telecoms Package trialogue last week, which took place after the heated meeting of the European Parliament's delegation, was a

new piece of re-worked text. The re-working was carried out by the Council's delegates - the bureacrats from COREPER - and once again we see how the Council wants to literally write out Internet users rights (see below).

Apparently, Mrs Trautmann and Mr Alejo-Quadras, representing the European Parliament in the Telecoms Package trialogues, put forward the Parliament's revised text for replacing Amendment 138. This is based on the legal opinion that Amendment 138 runs counter to Article 95 of the EU Treaty, an opinion which has not been ratified by any external legal experts, and therefore must be regarded sceptically as an excuse to try to get rid of Amendment 138 and the principles it stands for.

What must be recalled is that this is about an enabling law*. The amendments to the Telecoms Package that relate to copyright and to restricting the Internet do not mandate anything, but they do enable. Governments and commercial companies which do not like the direction that the Internet is taking, and the empowerment it gives us as both citizens and consumers, want to give themselves the power to stop users from exercising those powers. One such power is the relatively simple one of blocking voice over IP applications, such as Deutsche Telekom is doing to Skype.

The Council (COREPER, the bureaucrats) is to work on the new text, and send its further revisions before 4 November . The 4 November is the date already pre-agreed between the administrators of the Parliament and the Council for the Conciliation dinner ( see my previous article). It means that they were planning to have the Package tied up by then, having bullied the Parliament into submission.

No firm date appears to have been given for the Council's revised text to be received by the Parliament, which means the Council could spring the text on the Parliament the day before, and pressure it to agree. The questions to ask are: When will we see it? Will it be significantly different from the changes already made by the Council?

The Council's political 'Scrabble-playing' can be seen below. A few points to note:

1. As I have said previously, the amendment is written from the standpoint of member state governments who want to restrict access to services on the Internet. It is NOT written from the user's viewpoint.

2. Consider what are 'measures liable fo restrict fundamental rights?' Copyright enforcement would most definitely come into this category, but other measures could too.

3. The phrasing Measures taken by Member States , could be seen as limiting the provision to member states and excluding restrictions by commercial providers which were not government mandated. This could mean that commercial providers could impose restrictions without being obligated to respect citizen's fundamental rights. This point is underlined by the Council's changes inserting 'any of the above' in the second paragraph.

4. The deletion of 'exceptional circumstances' is significant because if you sanction millions of people for peer-to-peer filesharing, this is not an 'exceptional' circumstance.

The Council has unsurprisingly deleted the word 'prior' - which it objects to because this would force a court procedure before any action could be taken to cut off individual users. Likewise, it has deleted the 'presumption of innocence'. The sum total of its deletions to this sentence appear to mean that government's could implement a Hadopi-style justice, with either a rubber stamp of the judgement ( like France) or an administrative appeals process ( like Britain).

5. The Council has insisted on the last sentence, which lists "the prevention, investigation, detection and prosecution of criminal offences" - this phrasing could be interpreted as copyright enforcement, since copyright infringement in some countries and in some forms, is a criminal offence.

The Council's proposal looks like this. Insertions are underlined, deletions are crossed out.

3a. Measures taken by Member States regarding end-users' access to or use of services and applications through electronic communications networks shall 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.

Any of the above measures liable to restrict those fundamental rights or freedoms may therefore only be taken in exceptional circumstances and imposed if they are appropriate, proportionate and necessary within a democratic society, and shall be subject to adequate procedural safeguards in conformity with the European Convention for the Protection of Human Rights and Fundamental Freedoms and with general principles of Community law, including effective judicial protection and due process. In particular, anyThesemeasures may only be adopted as a result of a prior, shall respect the requirements of a fair and impartial procedure ensuring inter alia that the principle of presumption of innocence and including the right to be heard of the person or persons concerned be fully respected. Furthermore, and the right to an effective and timely judicial reviewshall be guaranteed.

This shall not affect the competence of a Member State, in conformity with its own constitutional order and with fundamental rights, inter alia, to establish a requirement of a judicial decision authorising the measures to be taken and to adopt urgent measures in order to assure national security, defence, public security and the prevention, investigation, detection and prosecution of criminal offences.

* Enabling laws can be abused unless there is a balancing protection for citizens. We should cautiously note that it was an enabling law which permitted Hitler to take full control of the political process in Germany in 1933.

For additional analysis, see MEP Christian Engstr?m's blog .

For the full story of the Telecoms Package, see my book The Copyright Enforcement Enigma: Internet politics and the Telecoms Package

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) The EU's political scrabble to enable Hadopi's http://www.iptegrity.com 26 October 2009.