Harmony Is The Only Fundamental

Michael Hedges November 5, 2009 - Follow on Twitter

Complexity doesn’t lend well to rule making. European institutions – the Parliament, Council of Ministers and the Commission – debated the telecoms package long and hard. Compromise is upon us.

Rights holders have won a decisive victory over advocates of a fundamental right of internet access. The decision of the European Parliament and Council of Ministers accepting the long-debated telecoms package prevents the European Commission (EC) from forcing judicial review of internet piracy cases in national jurisdictions. The agreement was reached shortly after midnight (CET) and announced Thursday morning (November 5). National governments are now free to adopt laws that can strip internet access by simple administrative review from people accused of pirating copyrighted material via the internet.

The telecoms reform package, meant to boost European competitiveness, has been stalled over the degree to which the EC would shape – and enforce – telecom policy. EC Info Society and Media Commissioner Viviane Reding has taken aim at big telecoms over everything from roaming rates to broadband access. 

The telecoms package was first introduced two years ago and has stumbled along the way. Big telecom operators terrified for their profit margins lobbied hard to eliminate a pan-European super-regulator. National governments fear EU “interference” in their fiefdoms. Harmony is not easy to learn.

But the final sticking point to agreement among the politicians was piracy and the means to curb it. Last May the European Parliament passed a motion to curb national governments from restricting internet access without judicial review. The French government had already passed a strong measure, commonly known as the Hadopi law, that would cut off internet access to accused downloaders. UK business secretary Peter Mandelson, after a weekend on music mogul David Geffen’s boat, proposed an equally strong “three-strikes and your off” measure.

"I am very happy that we have reached an agreement on the telecoms package," said Sweden’s Communication Minister Asa Torstensson at a press conference. “This agreement strengthens the competitiveness among enterprises and enhances the consumer protection in Europe, which will lead to ... better and less expensive broadband services and substantially stronger protection for all Internet users.” Sweden holds the rotating EU presidency.  A Swedish court convicted operators of the file-sharing website Pirate Bay for facilitating copyright violations.

It was Amendment 138 that held up passage of long-suffering telecoms reform. A text passed by the European Parliament in May – influenced by outrage over the draconian French law – required “prior ruling by the judicial authorities” before a suspected illegal downloader faced internet cut-off. The “Internet Freedom Provision” eliminates a priori judicial review. In late October the French Constitutional Council revised the Hadopi law, requiring judicial review.

“A prior, fair and impartial procedure shall be guaranteed, including the right to be heard of the person or persons concerned, subject to the need for appropriate conditions and procedural arrangements in duly substantiated cases of urgency in conformity with European Convention for the Protection of Human Rights and Fundamental Freedoms,” says the new text. “The right to an effective and timely judicial review shall be guaranteed.”

Despite all earlier projections Members of the European Parliament (MEPs) effectively ended a “fundamental right” to internet access. The music and movie industries, supported by the French and British governments, proved the most successful lobbyists. Finland’s government passed legislation calling internet access a fundamental right of citizens.

“The debate between Parliament and Council has also clearly shown that we need find new, more modern and more effective ways in Europe to protect intellectual property and artistic creation,” said Commissioner Reding. “The promotion of legal offers, including across borders, should become a priority for policy makers.”

“This internet freedom provision is unprecedented across the globe and a strong signal that the EU takes fundamental rights very seriously, in particular when it comes to the information society,” said Commissioner Reding in a statement. “The agreement on the new internet freedom provision, which has the unanimous support of all negotiators, now paves the way for a swift entry into force of this telecoms reform.”

Big telecoms and national telecom regulators will face a pan-European agency - the Body of European Regulators for Electronic Communications – meant to enforce more market openness. Most of its fangs, however, have been removed and it will be a largely consultative agency. National telecom regulators will face an “independence” review, designed to curb political cronyism.

To benefit consumers, the new telecoms package strengthens privacy and data protection rules. Telecoms and internet service providers (ISPs) will be required to notify authorities and customers of security breaches. The new rules require telecoms and ISPs to keep names and account information “safe” from prying eyes.

The European Commission moved its complaint against the UK government over data protection (November 2). Controversial trials by BT (formerly British Telecom) of the ad-serving system known as Phorm may have illegally – under EU rules – compromised customer information. The UK government dismissed EC calls for action and, so, Commissioner Reding says a court appearance could be forthcoming.

“People's privacy and the integrity of their personal data in the digital world is not only an important matter, it is a fundamental right, protected by European law," said Commissioner Reding in a statement (November 2). “I therefore call on the UK authorities to change their national laws to ensure that British citizens fully benefit from the safeguards set out in EU law concerning confidentiality of electronic communications.”

A final, largely ceremonial vote of the European Parliament will be held later in November. EU Member States will then have 18 months to harmonize national legislation.

Harmony, of course, is at the forefront of current European Union policy concerns. Politicians in Member States have become increasingly vocal about national sovereignty want less EU encroachment on local prerogatives. Amendment 138 was particularly irritating to Euroskeptics for proposing judicial harmony, which stands outside the EU Treaty. 

The almost certain adoption of the Lisbon Treaty, now approved by parliaments of all 27 EU Member States, will give the European Commission more power to seek harmony.