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We promise. What’s the point?

By EDRi · February 6, 2014

Maybe, after all of the noise about crazy ideas like “Clean IT” and ACTA, there won’t be any big digital rights files for the incoming European Parliament.

Maybe we don’t need to worry about having parliamentarians who understand the internet and digital rights.

Maybe there won’t be any relevant proposals anyway.

Maybe we don’t need to support the We Promise campaign.

Wrong! Very wrong!

There will be an avalanche of important proposals landing on the desks of new Members of the European Parliament after the elections.

This is due, in part, to the fact that several measures have been delayed by the European Commission until the new Parliament takes office, to minimise the risk of an “ACTA effect” before the elections. Here is a selection of proposals that will have a major impact on the civil liberties of every European citizen that will either definitely or probably be launched in the first 18 months of the new Parliament:

  •  Revision of the Directive on civil enforcement of intellectual property rights (IPRED)

The European Commission plans to revise the IPRED Directive, which gives added powers to rightsholders and their representatives to act against alleged infringements. This Directive allows, for example, easier access to individuals’ personal data and stifling of free speech. It is the legal basis for the coercion and, according to one British parliamentarian, “blackmail” of innocent individuals by law firms, especially in Germany and the United Kingdom.

  •  Launch of the Directive on criminal sanctions for enforcement of intellectual property rights

This Directive introduces parts of the ACTA proposals in Europe. In line with Section 4 (ACTA), this Directive will create harmonised criminal penalties for infringements of copyright and other so-called “intellectual property rights”. It was originally proposed in 2006, but had to be withdrawn as the European Commission did not have a legal right to propose it. Following the entry into force of the Lisbon Treaty in 2010, the legal basis now exists. Sources in the European Commission say that the Directive was supposed to be launched in 2010, but was postponed due to the anticipated adoption of ACTA. The Directive also has provisions on injunctions that can be imposed on Internet service providers.

  • Revision of the Directive on Copyright in the Information Society

This Directive – which was supposed to harmonise the approach to “copyright in the information society” – has bizarrely created literally millions of options for EU Member States. Some countries have used this Directive in order to recognise the freedom to use copyrighted material for parody purposes, some have not, some permit private copying, others do not, some permit flexible use of protected material for educational purposes… some do not. And the Directive gives legal protection to digital restrictions software, meaning that rightsowners are given the power to remove rights that have been specifically approved by legislators. The Directive also has provisions on injunctions that can be imposed on Internet service providers.

  • Data Retention Directive

This Directive creates an obligation for all telecommunications companies to store records of communication of every citizen for at least six months and up to two years. In December 2013, the Advocate General of the European Court of Justice advised the Court that the Data Retention Directive is incompatible with EU law. A final ruling of the Court is expected before the summer. The most likely outcome is that the Court will agree with the Advocate General, but give the EU a chance to propose new legislation. There has already been a Resolution of the European Parliament that search engines should also be required to store such data.

  • Data protection Regulation

The fundamental rights to privacy and data protection are established by the European Charter of Fundamental Rights and the European Convention on Human Rights. The European Commission launched its proposed new legal framework for protection of the personal data in January 2012. After two years of one of the biggest lobbying campaigns of all time, lobbyists and certain EU member states are trying to stop the legislation because they don’t want to legislate “too quickly“. After a vote in March of this year in the European Parliament, the dossier will need to be picked up for a “second reading” after the elections.

  • Data protection in relation to processing of personal data for the prevention, investigation, detection or prosecution of criminal offences

A second element of the data protection reform package is a Directive on the protection of personal data with regard to the prevention, investigation, detection or prosecution of criminal offences. It is highly likely that this Directive will also be on the agenda of the new European Parliament after the elections.

  • The Trans-Atlantic Free Trade Agreement (TAFTA / TTIP)

The proposed free trade agreement with the United States is being sold to citizens on the basis of some ridiculous claims (MP4 file) regarding its potential impact on jobs and growth. Examples of what the final agreement may include are “investor-state dispute resolution” (ISDS) and “enhanced regulatory cooperation”. ISDS would create tribunals that would give companies rights that citizens do not have, such as the right to to appeal to “tribunals” and overturn national legislation (or simply to threaten to do so, as a lobbying tool). “Enhanced regulatory cooperation” would create a committee to approve or reject proposed legislation. Even the European Commission itself has had to recognise this danger, promising (unspecified) measures to protect the EU’s and Member States’ right to legislate, albeit using very dubious arguments. In one document, the Commission explains that “legitimate government public policy decisions cannot be over-ridden” – in other words, the tribunals will only overturn legislation that they believe should be overturned . For more information, please see the detailed analysis from Corporate Europe Observatory.

  • Communication on “notice and action”

The European Commission will produce guidelines on the removal of online content by internet companies, when accusations are made that the content might be illegal.