According to reports from  a French embassy seminar in Berlin, German  MEP Ruth Hieronymi said that  the  key  "co-operation" amendment to  the Universal Access directive (Harbour report) in the Telecoms Package  DOES  provide the basis for  graduated response / 3-strikes in EU law. 

Frau Hieronymi was referring to Amendment 112 of the Harbour report (Article 33 (2a) which specifies that regulators shall promote "co-operation" between right-holders and Internet Service Provides.  She stessed several times that the concept of "co-operation"  is clearly anchored in the Harbour report.   "In dieser Rechtlinie, is das Prinzip der Ko-operation in eine Reihe von Antragen...abgestimmt" (In this directive, the principle of co-operation is agreed in a raft of amendments').  

And she argued that the  Telecoms Package  provides the basis for Olivennes measures in European law.

'Ich bin der Feste Uberzeugung, dass die Rechtsgrundlagen gegeben ist, ein Modell wie Olivennes sehr wohl mit Europaeischen recht kompatible zugestalt', she said. (Translation: I am absolutely convinced, that the legal framework is there, to fashion a model like Olivennes that is compatible with European law). 

She went on to link it directly to the "co-operation" concept:

"auf diesen Grundlage dann, die Ko-operation des Sektors fuer die Erarbeitung solche wege, solche Ko-operationsmodelle, gestarkt wird..." (Translaterion: on this framework then, the  co-operation of the sectors, for working out these paths, these co-operation models, will be strengthened..."

Her comments were given at a seminar organised by the French Embassy in Berlin. The invitation was headed: " Einladung zur Konferenz über die Entwicklung kreativer Online-Inhalte" (Invitation to a conference on the development of Creative content online) and the conference topic was 'Kann die Olivennes-Vereinbarung die Weichen für die digitale Zukunft stellen?' (Can the Olivennes agreement set the course for the digital future?)

Frau   Hieronymi's comments are interesting, because this is the first public admission that the  attempt to insert graduated response and copyright enforcment measures into the Harbour report was deliberate. It casts serious doubt over

A Council working document has dropped without explanation or even a formal deletion, the 'pro-Bono' amendment 166 (Article 32a) of the Harbour report, which reiterated the Parliament's opposition to 3-strikes measures. Other measures will impose costs on ISPs, and remove oversight by the European commission and national Regulators to protect users in cases of content filtering.

The document, which emerged yesterday, comes from the European Council working party on Telecommunications and the Information Society. It has scrapped the pro-Bono amendment (166 numbered as Article 32a), which voted by a clear majority in the Parliament. The Article is simply NOT in the document. There is no text to explain why - it is usual for text that is amended to be crossed out and an alternative put in its place. The other amendments from the Parliament are in the text. One has to ask the question therefore, whether this is an attempt by the Council to bury an inconvenient piece of law, and to go against the wishes of the elected Parliament.

So that it is not forgotten, here is the text which the Council wants to hide:

Amendment 166 Proposal for a directive - amending actArticle 1 - point 19 b (new)Directive 2002/22/ECArticle 32 a (new) 19b)

The following Article 32a shall be added: "Article 32a Access to content, services and applications Member States shall ensure that any restrictions to users' rights to access content, services and applications, if they are necessary, shall be implemented by appropriate measures, in accordance with the principles of proportionality, effectiveness and dissuasiveness. These measures shall not have the effect of hindering the development of the information society, in compliance with Directive 2000/31/EC, and shall not conflict with citizens' fundamental rights, including the right to privacy and the right to due process."

The deletion comes together with other changes to implement measures which make a 3-strikes regime easier. They scrap the

Viviane Reding is no iron lady - she IS  for turning, as this weeks events reveal a u-turn on her position of 6 months' ago. 

Amid the furore over the Telecoms Package and  Amendment 138, which put paid to the French government's plans to cut users off the Internet for alleged copyright infringement,  EU Information Society Comissioner Viviane Reding has now come down on the side of the citizen.

Speaking at a conference in Brussels on Wednesday, she is reported to have underlined the importance of citizens as stakeholders in the debate over the future of the Internet. According to a report in EUobserver, which organised the conference, she said that "the parliament's amendment was an important re-statement of citizens' fundamental rights, and that cutting off someone's access to the internet also cut them off from searching for jobs, from health records and

In contradiction to previous unverified reports, it now appears that Viviane Reding, European Commissioner for Information Society, does support Amendment 138 of the Telecoms Package - or at least, she won't go against it.   Brussels sources close to Mrs Reding have confirmed  that Mrs Reding will not oppose the amendment given that it was the subject of a very large majority in the Parliament. 

Update 7 October 2008 This has now been confirmed by a Commission official at a press conference - see links below. 

Amendment 138 of the Telecoms Package is the citizens' amendment, proposed by the French MEP Guy Bono, and reinforces a principle voted by the European Parliament in April 2008, within the Bono report (Report on the Cultural Industries in Europe). It states that a court ruling must be obtained in respect of sanctions against Internet users who are alleged to have illegally downloaded copyrighted material. It is widely being interpreted as the death of graduated response / 3 strikes measures. 

Amendment 138 was subject to last minute horse-trading in the European Parliament, and the text as voted - with an oral amendment - was agreed on a cross-party basis, which is why it was able to obtain such a large majority - 573 in favour and only 74 against. The majority included a large number of the EPP conservative group, as well as the socialists and greens.   

Reports (see previous article on iptegrity.com) have suggested that Mrs Reding wanted it withdrawn, but they were not officially confirmed. This view could have been inferred from a statement by the French Culture Minister, Christine Albanel, which alleged  that the European Commission has never supported Amendment 138: "La ministre rappelle qu'aucun des Etats membres qui composent le Conseil, pas plus que la Commission, n'ont manifesté leur volonté de soutenir un amendement de cette nature".  It is now apparent that the Commission's position is different from that suggested by Mme Albanel.

 As I understand it, the Council position on the Telecoms Package  is also not so clear cut. There are suggestions that the French are in a minority of one, and that other member states oppose the inclusion of content measures in the Telecoms Package. 

Mrs Reding is between a rock and a hard place. She wants to be

EU Commissioner for Information Society apparently seeks the removal of Amendment 138,  a key Telecom Package  amendment to protect citizens' rights to access content on the Internet

According to an unconfirmed report by La Quadrature du Net,  Viviane Reding, European Commissioner for Information Society and self-styled champion of lower telecoms costs, has reacted swiftly to the Telecoms Package vote result. Less than two days afterwards, she is demanding the withdrawal of a key amendment carried in the  vote on Wednesday.

The report says that she has announced that she would require, on behalf of the European Commission, the withdrawal of Amendment 138. This was the amendment proposed by French MEP Guy Bono, which states that no restrictions on access to Internet content may be made which infringe on users' fundamental rights. It also says that in the case where someone wants to do that, they must first apply to a court. It effectively puts a barrier in the way of the French government's plans for graduated response, and La Quadrature suggests that Mrs Reding's motive may be to protect the French government's plans. 

We would respectfully remind Mrs Reding of a speech she gave only last year, on 9th July 2007, to the International Federation of Journalists, on the subject of freedom of expression.  "Freedom of expression and freedom of information are not luxuries to be indulged in only at the end of social development. They are the starting point for the development of a free and democratic society".