ACTA: Worldwide Net restrictions without public debate

Paris, November 12th, 2009 - Since Spring 2008, The European Union, the United States, Japan, Canada, South Korea, Australia as well as a few other countries have been negotiating a trade treaty aimed at enforcing copyright and tackling counterfeited goods (Anti-Counterfeinting Trade Agreement or ACTA). The last round of negotiations, held in much secrecy last week in South Korea, was focused on the enforcement of so-called “intellectual property rights” on the Internet. La Quadrature puts together a web-dossier on ACTA and sends a letter1 to Christine Lagarde, French minister of the Economy, to ask that she publicly oppose the proposal regarding Internet regulation.

Europe only goes half-way in protecting Internet rights.

Brussels, November 5th, 2009 - An agreement has been reached on the Telecoms Package. The new text1 aimed at protecting Internet access includes positive elements such as a reference to the right to a "prior fair and impartial procedure" as well as the presumption of innocence. It also contains ambiguous language and potential loopholes. This rather unambitious provision will now be up for interpretation, and it remains to be seen whether it will invalidate Net access restrictions such as "three strikes" policies.

Will the EP turns its back on Internet rights?

Brussels, November 4th 2009 - On the eve of a crucial conciliation meeting that will decide on the fate of the "Telecoms Package", the European Parliament must decide whether it will keep its promise to protect citizens rights online. Will the European Parliament send a dangerous message to Member States by assenting to extrajudicial restrictions of Internet access? Should fundamental rights be sacrificed in an attempt to finish Telecoms Package at any cost?

Amendment 138 - Legalese for Progress, not political weakness

Tonight, a conciliation committee meeting will take place between the Council of the European Union and the European Parliament. Both institutions will try to resolve their year-long dispute over amendment 138 by considering a worthless compromise proposal.

In the past days, some Members of the Parliament have been convinced to depart from the strong protection for the freedom of expression and communication granted by amendment 138. They bought the arguments put forward by the Council, as well as the Parliament's own legal services who conducted a biased analysis at the request of rapporteurs Catherine Trautmann and Alejo Vidal-Quadras. According to amendment 138 opponents, the European treaties do not allow the Parliament to require that Member States adapt their judicial system to better protect European citizens. However, case law seems to indicate that this is just an abusive argument aimed at concealing their political timidity.

Amendment 138, provides that “no restriction may be imposed on the fundamental rights and freedoms of end-users, without a prior ruling by the judicial authorities”.

"Three strikes" in Europe, on Wednesday?

Paris, November 2nd, 2009 - The negotiations on the Telecoms Package might come to a close on Wednesday. The Council of the European Union is still pushing for "three strikes" policies in Europe but is also attempting to allow private corporations to restrict citizens' Internet access. Will the European Parliament continue to hide behind a disputable legal argumentation provided by the rapporteur Catherine Trautmann, and accept the unacceptable for the future of Internet access in Europe?

A campaign page1 has been set up to allow everyone to contact Members of the European Parliament and urge them to refuse any proposal from the Council allowing "three strikes" policies in Europe, and to explicitly protect EU citizens' freedom to access the Net.

Net Freedoms in Europe: Recapitulating the capitulation

The European Parliament delegation led by Catherine Trautmann recently gave up on protecting EU citizens against arbitrary restrictions of their Internet access. In order to reach an agreement and avoid a clash with Member States, the Parliament retracted its support to the core element of notorious "amendment 138" : prior judicial decision before restrictions to access and usage of the Internet. This protection of citizens' fundamental rights against arbitrary restrictions of their Internet access came a long way. Here is a little restrospective on the "stations of the cross" of amendement 138.

(See also the rewording of amendment 138, preserving its core principles while adressing legal uncertainty, that was transmitted to MEPs last week)

An evolution of "amendment 138"

Here is a comparison chart of the different versions of "amendment 138" along the whole co-decision procedure.

Denomination Wording of the text Quick analysis and references

Original amendment 138 voted on Sept 24th 2008

, 8.4.g of the Framework directive, tabled by Bono (PSE, FR), Cohn-Bendit (Greens, FR) and Roithova (EPP, CZ)

Indisputable rewording of Amendment 138

La Quadrature du Net sent this proposal to the Parliament last week.

It takes into account the good-faith concerns expressed against the original version of amendement 138 (see our memo), which was voted twice by 88% of the European Parliament. Located in article 8.4.h of the Framework directive, it gives National Regulatory Authorities shall promote the interests of the citizens of the European Union by:

HADOPI 2 validated, a defeat for the rule of Law

Paris, October 24th, 2009. On Thursday, the Constitutional Council gave its decision1 on HADOPI 2, the legislative patch proposed by the French government in order to cricumvent the Council's refusal of the core provisions of HADOPI 1. La Quadrature du Net deplores a weak decision that does not correspond to the progressive protection granted in the decision on HADOPI 1, which recognized the Internet as instrumental to the freedom of expression and communication. It is a sad news for democracy and the rule of law, and the beginning of the failure of this new attempt to enforce a copyright regime that is fundamentally unadapted to the digital age.

Amendment 138 dead by lack of courage of the Parliament

Strasbourg, October 21st, 2009 - Yesterday, representatives of the European Parliament, an institution that ordinarily prides itself for protecting human rights at home and abroad, decided to surrender to the pressure exerted by Member States. The Parliament gave up on amendment 138, a provision adopted on two occasions by an 88% majority of the plenary assembly, and which aims at protecting citizens' freedom in the online world. Instead of ensuring that no restriction to Internet access would be imposed without the prior ruling of a judge, amendment 138 will instead be replaced by a weak provision1, that does not carry any new important safeguard for citizen's freedoms.

Amendment 138: Why does Trautmann persevere in giving up?

Strasburg, October 20th, 2009 – Rapporteur on the Telecoms Package, Catherine Trautmann will try once again to push a replacement for amendment 138. Her proposal replaces the effective protection of freedom of expression thanks to a prior judicial decision before three-strike types of sanctions can take place by "the right to an effective and timely judicial review". But can the right to a fair trial be a reality for someone who is deprived of the access to the Internet, the essential means of expression and communication in todays' world ?

Amendment 138: European Parliament cannot give up citizens' freedoms

Strasbourg, October 19th 2009 - European Consumers unions and Internet service providers join La Quadrature du Net and numerous NGOs to urge the European Parliament not to give up the fundamental rights of EU citizens. The ongoing conciliation phase of the Telecoms Package will give the Parliament an opportunity to stand once again against arbitrary restrictions of Internet access.

Memo: Improving Amendment 138 While Preserving its Core Principles

The Council of the European Union opposes amendment 1381 for reasons that are still unclear. However, the Commission has come up with a new proposal2, supposedly backed by the Council, which could allow for worrying exceptions to the fundamental rights guaranteed by Community law. However, there are good-faith concerns about the current wording of amendment 138. Although its core principles need to be preserved, amendment 138 can and should be improved to better respect the Community legal order.

This memo (download this memo as a PDF file) aims to:
i) point out the dangerous elements of the Commission's new proposal;
ii) outline various aspects of amendment 138 that could be improved to better fit Community law;
iii) explain how a reworded provision could preserve the core principles of amendment 138

  • 1. Amendment 138: Article 8.4.g of the Framework Directive. (...) "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."
  • 2. Commission's new compromise proposal: Article 1.3.a of the Framework directive. "Measures taken by the Member States regarding end-users' access to and use of services and applications through electronic communications networks shall respect the fundamental rights and freedoms of natural persons, including in relation to privacy, freedom of expression and access to information and due process and the right to effective judicial protection in compliance with the general principles of Community law. Any such measure shall in particular respect the principle of a fair and impartial procedure, including the right to be heard. This paragraph is without prejudice to the competence of a Member State to determine in line with its own constitutional order and with fundamental rights appropriate procedural safeguards assuring due process. These may include a requirement of a judicial decision authorising the measures to be taken and may take account of the need to adopt urgent measures to be taken and may take account of the need to adopt urgent measures in order to assure national security, defence, public security and the prevention, investigation, detection and prosecution of criminal offences".

Amendment 138: The Parliament betrayed by its negotiators

Brussels, October 14th, 2009 - Negotiations on the Telecoms Package took a worrying turn for citizens rights and freedoms. The European Parliament Delegation was betrayed by its negotiators, led by Catherine Trautmann (S&D) and Alejo Vidal-Quadras (EPP). In total contradiction with the mandate given by their colleagues representing the Parliament, the negotiators unilaterally accepted to work on a proposal by the Council of the EU that negates citizens' rights1. This dangerous proposition is set to replace "amendment 138", voted twice by 88% of the Parliament.

European Parliament must reject dangerous replacement of amendment 138

La Quadrature du Net sent a letter and a memo1 to the Members of the European Parliament to urge them to protect their prerogatives by rejecting the Council's dangerous proposal2 to replace amendment 138. For the Council, the right to a due process, which is crucial to preserve justice in a democracy, could be limited "in order to assure national security, defence, public security, and the prevention, investigation, detection, and prosecution of criminal offences."
Amendment 138 is necesary to make sure that Internet-related legislation will protect the fundamental rights guaranteed by Community law. It is now time for both institutions to work in a spirit of cooperation to perfect the wording of amendement 138 while preserving its core principle.

La Quadrature's response to the post-i2010 consultation

La Quadrature du Net published its position paper regarding the post-i2010 consultation launched by the European Commission. La Quadrature calls on the Commission to focus on Internet users' rights, particularly by mandating Net neutrality and reforming the European copyright regime.

Telecoms Package: Does the EU Council hate Freedom?

As the negotiations of the conciliation committee on the Telecoms Package unfold, the Council of the European Union came up with a new, alarming proposal.

Amendment 138: The European Parliament must stand up against the Council

Paris, October 5th 2009 - Negotiations have begun between the European Parliament and the Council of the EU on "amendment 138"1, which protects citizens against restrictions on their Internet access. The Council wants to neutralize it, but has yet to express publicly what specific parts of the text member States oppose. As the Parliament voted twice for this amendment, by a very strong majority, it must now stand firm and show EU citizens that it is committed to protecting their fundamental rights.

  • 1. am.138 states “the principle that no restriction maybe imposed on the fundamental rights and freedoms of end-users without a prior ruling of 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.“