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Thursday, November 05, 2009
EU Decision Offers Hope to File-sharers


EU lawmakers and governments agreed Thursday on proposed new telecommunication rules that better protect European mobile phone and Internet users being cut off by their service provider.

"A user's internet access may be restricted, if necessary and proportionate, only after a fair and impartial procedure including the user's right to be heard", MEPs and Council representatives agreed in negotiations on Wednesday night on this, the last open issue in the telecoms package.

The two sides had already agreed in May that internet is essential for the exercise of fundamental rights such as the right to education, freedom of expression and access to information. So MEPs insisted in Wednesday's conciliation meeting on establishing adequate procedural safeguards for internet access, in line with the European Convention for the Protection of Human Rights and Fundamental Freedoms guaranteeing effective judicial protection and due process.

Restrictions on a user's internet access may "only be imposed if they are appropriate, proportionate and necessary within a democratic society", agreed MEPs and Council representatives. Such measures may be taken only "with due respect for the principle of presumption of innocence and the right to privacy" and as a result of "a prior, fair and impartial procedure" guaranteeing "the right to be heard (...) and the right to an effective and timely judicial review", says the compromise text on the electronic communications framework directive. "In duly substantiated cases of urgency" appropriate procedural arrangements may be made provided they are in line with the European Human Rights Convention.

In future, internet users may refer to these provisions in court proceedings against a decision of a Member State to cut off their internet access.

Parliament's delegation approved the joint text unanimously. The compromise still has to be approved by the full Parliament and Council.

Neither the Commission's original proposal nor the Council's common position included safeguards against unduly restricting a user's internet access. However, Parliament twice adopted an amendment requiring national regulatory authorities to promote the interests of EU citizens, inter alia by "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 in which case the ruling may be subsequent".

The Council twice rejected this amendment, thus initiating the third and last stage of the EU legislative process, known as conciliation.

On the other hand, there were serious doubts as to the legal validity of the amendment, as it would seem to go beyond the European Community's competences in this field. This wording would arguably have required a harmonisation of Member States' judicial systems - a condition that goes beyond what the Community can adopt under the legal basis of EC Treaty Article 95 on harmonisation measures for the internal market. Consequently, if the old amendment had been adopted, the European Court of Justice might have annulled the electronic communications framework directive at a later stage.

Parliament's third-reading vote is scheduled for 23-26 November.

Under pressure from the music and film industries, France had pushed hard for tough measures against illegal downloaders. France had advocated a "three strikes and you're out" rule, under which Internet use would be tracked and users caught downloading would be warned twice before their Internet access would be cut off for a year.

However that approach was ditched after the French parliament passed a law in September watering down that plan.

UK is also promoting a UK legislation that will target illegal filesharers. However, the EU's decision in Brussels could complicate plans by Britain, which is considering a three-strikes law of its own.


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