5 months ago the European Parliament adopted the Bono-Rocard-Fjellner amendment that made a clear statement declaring the Internet to be an essential common resource and calling Member States and the Commission to abstain from introducing measures conflicting with civil liberties and human rights such as suspending access of users to the internet. This was a strong message, that carried much moral and political authority, but had no binding effect, as it was just included in an “own-initiative report”. Immediately afterward, the interest groups that ask for creating an “on-order” internet carved for the needs of the type enforcement of IPR they dream of made clear that they would no be taken by surprise twice. The authors of the amendment “would hear from them”.

They were true to their word, as in the following months, dozens of parasite amendments were pushed and tabled for adoption in Parliament reports on the directives revising the telecom packet, the key regulation framework for telecommunications in Europe. These amendments claimed to rebalance rights by limiting rights of users such as privacy or access and imparting of information when necessary for the “right of others” meaning IPR. In a climate of great confusion as almost nobody could understand the complex relations between the various amendments, many of them were adopted by various committees. With time to read and analyze, it appeared that taken as a whole, these amendments were paving the way for a possible introduction of three-strike approaches as considered in France. They were also seriously damaging to net neutrality, to the protection of internal personal communications against monitoring and filtering, to the role of judicial authorities.

The European Parliament is a fascinating place for anyone who had the chance to see at work on a controversial issue. It can be a place of great confusion, but it is also a place of open debate. When time permits, arguments are considered in detail. Civic society (I use this term to differentiate it from a vague concept of civil society that would include economic interest groups) has now built expertise on how to fuel the Parliamentary debate with analysis, with examples, with arguments. The lobbies did it for ages and are often master at producing catching arguments or formulas, such as the notion of lawful content (see below). So debate proceeded. Observing it at a distance, I must recognize that I was not much hopeful. I feared the “you don’t want to stand by the pirates” effect and the shear effect of complexity. I was wrong. Some of the MEPs who had tabled amendments which they genuinely thought to be protective of user rights convinced themselves that their effect was not what they had believed. Some of these amendments were withdrawn, and new formulation was proposed for others to answer criticism from internet users NGOs. A more global picture started to emerge. It became clear for some of the MEPs that a case-by-case treatment of all the provisions that had been sneaked in the committee reports risked missing some of them or ending in confusion. A new Bono/Cohn-Bendit/Roithova amendment was tabled by a cross-partisan group of MEPs. It creates a new recital by amending the report of Catherine Trautmann (who supported the amendment) on one of the telecom packet directives:

(ga) applying the principle that no restriction may be imposed on the fundamental rights and freedoms of end-users, without a prior ruling by the judicial authorities, notably in accordance with Article 11 of the Charter of Fundamental Rights of the European Union on freedom of expression and information, save when public security is threatened where the ruling may be subsequent.

It was adopted today in plenary session of the Parliament by 573 for and 74 against. This is a first reading vote, meaning that the text can still change in the future process. Some will say it just states an evidence. Then why did Commissioner Reding (in charge of information society and media) declare without even taking the time to consider the situation that she will reject the amendment on behalf of the Commission? The European Commission has the right to reject any amendment that it judges to modify significantly the aim of its proposal. It does not seem to be the case here, as the Commission proposal did not intend to remove the judicial power from its prerogatives. Only the IPR lobbies and the amendments adopted last June did so. Is it that Commissioner Reding has now become more aware of what some of her media constituency desire? We will see if the Commission actually rejects the amendment.

What has happened to the rest of the text? The amendments that created the possibility of special infringement of user rights and freedoms (privacy rights, rights to access contents of one choice) for the sake of enforcing IPR against alleged infringers have been more or less removed. I say more or less as it will take a few days before one can truly check that some did not get forgotten. On things remains in the text that deserves a special analysis: in a few instance, mention of the rights of users to access and transmit contents has been qualified by inserting the adjective “lawful” in front of content.

It is a problem? Yes. It promotes an apparently innocuous and definitely absurd way of thinking about contents. A content is not lawful or unlawful. At most can some contents be decided (by a judge) to be “harmful” (product of a criminal activity because one exerted violence on persons to produce it as in child pornography, possibly dangerous because of the effects of its dissemination) or defamatory. But certainly published works in circulation can not be unlawful. So, in an IPR context, it is never content that is unlawful, it is some unauthorised use of this content. So when interpreting the restriction of rigths of access and transmission of contents to lawful content, we must remember two things:

  • A “Content” is lawful unless proven (meaning in Court) otherwise. There is a presumption of titularity that allows someone to request judicial action or preventive measures without having a strong burden of proving that s/he is indeed the right holder for a piece of content (for instance by proving it is exploiting the work). But in no case is there a presumption of infringement. Even directive 2004/48/CE, one of the most extreme pieces of legislation on the enforcement of IPR, does not authorize preventive measures against commercial scale infringement to proceed before judicial authorities have judged that sufficient evidence has been presented on the existence (or imminence) of an infringement for a specific work.
  • Thus users can not be restricted in their rights to access or transmit contents until a judge has decided that a given “content” (meaning particular use of a particular content) is infringing.

Now another amendment was adopted today (amendment 166 by Eva-Britt Svensson and Marco Rizzo). It creates an article in one of the directive stating:

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.

Now certainly, considering all the above and this insistance on due process and privacy, certainly it is not possible to threaten people of being banned from accessing ALL contents on the Internet without some prior judicial decision, even less so when they are not even given a right to challenge the underlying accusations.

None of the above must be read as accepting the provisions of 2004/48/CE as serving the public interest. But they have at least one usefulness: showing that we just escaped the risk of seeing an even worse legal framework. It’s good news, thanks to many politically diverse Members of the European Parliament. The boomerang thrown by a limited group of IPR lobbies and their relays in the French government stroke back.

This post is also available in: French

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