Council of Ministers move to delete vital safeguards from EU Telecoms Package

Update (17/11/08): Write to your UK representatives today! French campaigners La Quadrature du Net have today launched a letter-writing campaign to urge Council of Ministers delegates from each of the European Member States to honour amendments passed by the European Parliament that ensure only proportionate and just sanctions against illicit filesharing can be proposed by national governments. From their press release:

“Should amendment 138 be removed from the Telecoms Package by the Council, it would show to the whole of Europe that the technocratic structure can be used by the executive branch to bypass the democratic expression of the Parliament. Such an acceptance of the will of Nicolas Sarkozy, to serve the interest of a very few lobbies from the entertainment industries, would be a very sad example of the failure of European Democracy.”

More information about the Quadrature du Net’s campaign to save amendment 138 is available here.

If you’re living in the UK and you’d like to take part in the campaign, write to your MP and ask them to pass on your concerns to the relevant official, and/or write directly to Stephen Carter, Minister for Commnications, Technology and Broadcasting, and Shiriti Vadera, Minister for Economic Competitiveness, both at BERR (Department for Business, Enterprise & Regulatory Reform, 1 Victoria Street, London SW1H 0ET). Feel free to leave a copy of your letter in the comments to this post.

You can find resources for your letter in this legal brief [pdf] (which has a 9 point summary at the end), in ORG’s submission to BERR’s recent consultation on domesitc proposals to combat illict filesharing [pdf], and on the Quadrature du Net’s wiki. The Council of Ministers will meet on 27 November, so it’s vital you get in touch with UK representatives as soon as possible.

Back in September MEPs responded to public concerns over the EU Telecoms Package by voting through vital safeguards that would help ensure that only proportionate and just sanctions against illicit filesharing could be proposed by national governments. Since then, you’d be forgiven for thinking your internet connection was safe from disconnection via corporate fiat.

However, deep inside the belly of Brussels, the Council of Ministers and the European Commission have been amending the European Parliament’s adopted text. Crucially, they’ve been arguing over whether to remove the very safeguards MEPs fought hard to include against the so-called “3 strikes and you’re out” plans favoured by the French. The result is a high level of uncertainty, underpinned by a forest of papers and amended texts that even the toughest legal minds might have trouble unpicking.

We’re lucky, then, that cyberlaw expert and ORG Advisory Council member Professor Lilian Edwards, together with her former student and now trainee barrister Simon Bradshaw, have been scrutinising the ongoing negotiations process, and the resulting proposed texts. In a 14-page paper [.pdf] analysing the various Directives that make up the Telecoms Package (as amended by Parliament in September) and the reactions to these amendments from the Council of Ministers and the Commission, they conclude:

“On the basis of our analysis it is clear that the package does, or at least can, provide a mandatory basis for the “warnings” part of a French-style connection sanctions law (the “strikes”) (see para 12 of brief), and also potentially provides a means by which public CSPs (ISPs and the like) can be compelled by the national regulator to work with (“promoting cooperation”) rightsholders to implement a disconnection scheme (the “you’re out” – see para 19 of brief). Wording in various places of the latest version seems to confirm that this “co-operation” is a more extensive obligation than simply providing copyright-related public interest information.

“This is a crucial set of obligations, about to be imposed on all of Europe’s ISPs and telcos, which should be debated in the open, not passed under cover of stealth in the context of a vast and incomprehensible package of telecoms regulation. It seems, on careful legal examination by independent experts, more than possible that such a deliberate stealth exercise is indeed going on.”

Negotiations are ongoing and Edwards and Bradshaw promise to update the brief as developments occur. You can download the full brief here.