Analysis of Recent Amendments to the EC Telecoms Package: Do They Provide a Legal Basis in Europe for 'Three Strikes and You're Out' Anti Filesharing Laws?
14 Pages Posted: 16 Jul 2009
Date Written: November 12, 2008
The authors were asked to comment as legal experts upon the proposed amendments to a set of key EU Directives governing telecommunications and related services, and known as the "Telecoms Package". In particular we were asked to clarify whether its provisions might by stealth give legal grounding to national measures, such as the law recently proposed by Sarkozy in France, which permit summary disconnection of a user's Internet access, without initial recourse to a court, in response to allegations of infringement of copyright (ie, file-sharing and downloading of copyright music and movies). Such measures have been popularly referred to as 'graduated response' or 'three strikes and you're out' and have already been condemned by the European Parliament as in breach of fundamental freedoms and due process rights..
On the basis of our analysis, we argue that 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 rightsholders to implement a disconnection scheme ("promoting cooperation") - the "you're out" - see para 19 of brief.
Furthermore, crucial safeguards for due process and orther fundamental rights such as privacy and freedon of expression, inserted into the text by the European Parliament, have been deleted by the Council of Ministers, and are still the subject of horse trading among political interests at time of writing.
Finally we identify other threats to human rights which might possibly emerge from the text in its current state of ambiguity ; including the threat of sanctions such as traffic slowing and filtering imposed by ISPs, also without due court process; and the possibility of unlimited length of time retention of traffic data by ISPs and telcos, under the figleaf of "network security".
The political process of the Telecoms Package is not yet concluded as of this brief's publication on 12 November 2008; this brief is being published now to assist legislators and lobbyists in focusing on what are (and are not) the true potential threats to justice and human rights in the Package. Good European law cannot be made when sectoral agendas are hidden within nested sets of amendments, obscure definitions by reference, and overly wide and vague terminology. The purpose of this brief has been to open up these obfuscated agendas to the light of day.
Keywords: EC law, intellectual property, filesharing, downloading, P2P, telecoms package, three strikes and you're out, graduated response, data retention
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