On Monday, September 28th, the Conciliation committee on the Telecoms Package – a major reform of the Telecommunications sector in the European Union (EU) – started discussing contentious provisions that remain in the text. Early May, Rapporteurs for the EP and diplomats from the Council of the EU reached a consensus on the whole package, but one amendment that was finally passed by the Parliament : the notorious amendment 138. This fundamental provision is now at the heart of the negotiation.
Early May, the consensus between the Parliament and the Council on this specific part of the text – nicknamed “fake 138” – read as follows:
“Measures taken regarding end-users’ access to or 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 the right to a judgment by an independent and impartial tribunal established by law and acting in respect of due process in accordance with Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.”
This compromise was especially pushed for by the French government, which was trying to pass a national bill – the infamous Hadopi law implementing the so-called “graduated response” or “three-strikes approach”. The bill granted an administrative agency the power to cut off Internet access for citizens suspected of sharing cultural works online without the rightholders’ permission. The reason why the French government was satisfied with the “fake 138” compromise was that HADOPI actually “respected” the right to a due process under a judicial authority, but only after the sentence was effective (in the French project, one could lodge an appeal to the judicial authority only after the decision of the administrative agency was put into effect. It was a non-suspensive appeal).
On the contrary, the Members of the European Parliament rejected the compomise, and adopted amendment 138 a second time, thus guaranteeing:
“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.“
The emphasis of this amendment is on the adjective “prior”. It means that any restriction on Internet access has so many implications for the proper exercise of fundamental rights that a only a prior judiciary ruling can guarantee adequate checks and balances.
This view was confirmed one month later by the French Constitutional Council, who revoked all sanction powers in the Hadopi law:
“Article 11 of the Declaration of the Rights of Man and the Citizen of 1789 proclaims: ‘The free communication of ideas and opinions is one of the most precious rights of man. Every citizen may thus speak, write and publish freely, except when such freedom is misused in cases determined by Law’. In the current state of the means of communication and given the generalized development of public online communication services and the importance of the latter for the participation in democracy and the expression of ideas and opinions, this right implies freedom to access such services. […] Freedom of expression and communication are all the more precious since they are one of the cornerstones of a democratic society and one of the guarantees of respect for other rights and freedoms. Any restrictions placed on the exercising of such freedom must necessarily be adapted and proportionate to the purpose it is sought to achieve.”
Hence, Internet access is now clearly acknowledged as instrumental to the freedom of expression and communication. As such, in a country that obeys the rule of Law, any restriction to the Internet access falls under the regime of a judicial process. Indeed, no one other than the judicial authority can guarantee that the rights and freedoms of the suspect – most notably the right to a due process – will be protected, and that the sentence will be proportionate to the original offense.
However, the “fake 138” patently disrespected the rule of Law. This is why the European Parliament rejected this compromise in second reading, only to reassert fundamental rights by voting once again in favor of the original amendment. As the conciliation process on the Telecoms Package unfolds, the negotiators for the Parliament must remain firm. They must make sure that the importance of Internet for people’s freedom is recognized, and therefore that the judicial authority remains the guardian of the free access to this revolutionary communications infrastructure. No “fake 138” should be accepted.