Telecoms Package : European democracy's victory already threatened

La Quadrature du Net (Squaring the Net) welcomes the adoption, in the first reading, of several amendments correcting major problems in the Telecoms Package, as well as the rejection of the most dangerous amendments.

Members of the European Parliament have shown today their commitment to privacy, the protection of personal data, and principles of proportionality and separation of powers.

La Quadrature thanks all MEPs who have worked in this direction, and all citizens who mobilized en masse to alert their delegates on these issues. We'd like to thank particularly the MEPs who have been able to reconsider their positions as they became aware of the risks to the rights and freedoms of their fellow-citizens.

However, La Quadrature calls for watchfulness.

Some vague formulations remain in the Telecoms Package. They do not prevent transposition into national laws affecting network neutrality. For example, the concept of "lawful content" is unknown in European law; its definition is left to the Member States. It must be completely removed, in order to complete the cleaning already made on this Package.

In addition, European Commissioner Viviane Reding has already announced she would require, on behalf of the European Commission, the withdrawal of Amendment 138 voted this morning.

Amendment 138 yet reaffirms a fundamental principle which should bring together all Europeans attached to the pillars of Europe, since it states that no restriction on the rights and freedoms of end users can be taken without prior decision of the judicial authority - safe when public safety is concerned (prevention of harm to persons).

La Quadrature therefore denounces a completely unsuitable request from Mrs. Reding, under the basic democratic principle recalled in the amendment (i.e. the separation of powers), but also under the parliamentary plebiscite it collected (574 MEPs for, 73 against).

This is indeed a self-evident democratic issue that a technocrat cannot deny, whatever her will to serve the liberticide plans of the French government and the entertainment lobbies. It is indeed obvious that she is trying to save the French "Graduated Response" project (also called "three strikes and you're out"), at which amendment 138 directly aims.

This is not the first time, however, that MEPs have stressed the illegality of the so-called three-strikes approach under community law. Last April they have already passed a resolution on cultural industries, which condemns the French project because of its disproportion.

This position was also expressed by the European Data Protection Supervisor early September. The French government should therefore be the one to reconsider its position, instead of asking the Parliament to give up on its duty to protect the fundamental rights of European citizens.

La Quadrature now asks all EU citizens to write to the president of the European Commission and to their government, and to make sure that the amendment 138 will be preserved by the Council. They also point out for lobbies and the French Minister for Culture that it is ridiculous to pretend MEPs did not target the graduated response.

For months, France has interfered with the Telecoms Package by trying to introduce copyright-related amendments in it. Fortunately, European citizens massively wrote to or called their MEPs to ask them to preserve their fundamental rights against this offensive. As a consequence, MEPs are totally aware of the stakes.

For instance, La Quadrature sent this note to all MEPs the day before the vote, to explain exactly why they consider the amendment 138 essential :

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Dear MEP,

On September 24th the European Parliament will be examining the first reading of the bill proposing the reform of the law on electronic communications, known as the Telecom package.

At the beginning of this summer this bill aroused a great deal of controversy. Several amendments which were adopted during commissions were denounced by some NGOs, as they would lower the level of data protection in Europe, and also enable Member States to substitute an administrative authority for a judicial one in order to fight illegal file sharing.

At the beginning of September the European Data Protection Supervisor (EDPS), which is an independent european authority, published its opinion, which confirmed the analysis of the NGOs.The EDPS was particularly concerned with some amendments which pave the way for the graduated response (or 3 strikes and you're out). This mechanism extends to disputes related to file sharing measures intended fight against terrorism or child pornography.

The EDPS recommended that such dispositions be deleted. The rapporteurs did not follow this primary advices of the EDPS, preferring to try to re-write those amendments criticised, so as to limit their effect. There was some progress, but it must be said that the re-writing of the amendments gave rise to a rather vague, loose text, which introduced concepts that were unknown to European law, and which were taken directly from the proposals of the French cinema lobby (like the "cooperation" between ISPs and producers).

The primary risk is that this rather vague text might be used by certain Member States to give permission to administrative authorities to restrict, without any prior judicial decision, the freedom of expression and information of internet users accused of unauthorized copying.

This risk is real. In July the French government proposed a bill transferring repressive power to an administrative authority which would act at the request of producers of content. It may be voted in November. The United Kingdom also wishes to take the same steps.

In our opinion, the European Parliament must eliminate this risk, which could question both the principle of proportionality and the separation of power, but which could also weaken the acceptability of those measures which are necessary to fight crime.

It must not be possible to extend the measures that national public authorities can implement to fight terrorism or child pornography to disputes concerning non-profit sharing of music and film on the Internet between individuals. Internet users exchanging works without permission should not be treated in the same way as criminals.

This is why we ask you to vote for Amendment 138 to the Trautmann report, tabled by a wide spectrum of MEPs (Guy Bono, Daniel Cohn-Bendit, Zuzana Roithova, Michel Rocard, Marielle de Sarnez, Christofer Fjellner, Rebecca Harms, Marco Cappato, Jean-Luc Benahmias and others).

Amendment 138 states that the national regulation authorities will ensure that no restriction concerning freedom of expression and information of a citizen is taken wthout a prior decision of the judicial authority, except in cases of 'force majeure', threats to security or national criminal law.

Amendment 138 is a guarantee that a bill like the french one about graduated response will not be adopted in Europe. This amendment is in the line with the Bono resolution adopted in April by the European Parliament.

We also ask you to vote against Amendment 34 to the Harbour report which would allow Member States to take measures which harm privacy. This amendment puts national security, crime and file sharing on the same level !

There are other zones which are not at all clear. As well as voting for Amendment 138 and against Amendment 34, we also invite you to clarify the rest of the text. Please find attached all our recommendations concerning the vote on the Telecom Package.

We hope that you will feel concerned by our request and thank you for your time and attention.

Yours faithfully,

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