Some amendments of the EP voted Telecom package still worrying

By EDRi · October 22, 2008

(Dieser Artikel ist auch in deutscher Sprache verfügbar)

Some of the amendments passed by the European Parliament (EP) on the Telecom
package are still worrying the civil rights groups, both on data retention
and IP issues. Also, the fact that some amendments of the EP do not appear
in the new document of the European Council working party on
Telecommunications and the Information Society creates more confusion.

According to information from Patrick Breyer from the German Working Group
on Data Retention, amendment 181 passed by the European Parliament
regarding directive 2002/58/EC could be read to legalise “voluntary” blanket
data retention practices as currently practised in the US. The amendment
would make the entire regulation of traffic data in Article 6 of the
directive meaningless. It is not restricted to times when an actual network
error occurs but would allow a general collection of traffic data on the
grounds of them being useful for “security purposes”. It does not set a time
limit, either.

Amendment 181 added in the Article 6 the following text: ” Without
prejudice to compliance with the provisions other than Article 7 of
Directive 95/46/EC and Article 5 of this Directive, traffic data may be
processed for the legitimate interest of the data controller for the
purpose of implementing technical measures to ensure the network and
information security, as defined by Article 4 (c) of Regulation (EC)
460/2004 of the European Parliament and of the Council of 10 March 2004
establishing the European Network and Information Security Agency, of a
public electronic communication service, a public or private electronic
communications network, an information society service or related terminal
and electronic communication equipment, except where such interests are
overridden by the interests for the fundamental rights and freedoms of the
data subject. Such processing must be restricted to that which is strictly
necessary for the purposes of such security activity.”

It seems that a majority of the EU member states are already critical to
this amendment.

But other amendments on the 3 strikes approach have come back on the agenda.
On 14 October 2008, the European Council Working Party on Telecommunications
and the Information Society issued a document that eliminated, without any
explanation or justification, the pro-Bono amendment 166 (Article 32a) of
the Universal Access directive (Harbour report) in the Telecoms Package
reiterating the European Parliament’s opposition to the 3-strikes measures

The article in question that said: “Article 32a Access to content, services
and applications Member States shall ensure that any restrictions to users’
rights to access content, services and applications, if they are necessary,
shall be implemented by appropriate measures, in accordance with the
principles of proportionality, effectiveness and dissuasiveness. These
measures shall not have the effect of hindering the development of the
information society, in compliance with Directive 2000/31/EC, and shall not
conflict with citizens’ fundamental rights, including the right to privacy
and the right to due process” and which was voted by a clear majority in the
Parliament, simply lacks from the recent European Council document without
any explanation whatsoever.

The document includes some other amendments which pave the way for the
3-strike system, imposing costs on ISPs and removing the oversight by the
European Commission and national Regulators meant to protect users from
content filtering.

At the same time, the article designed to support the French graduated
response measures, (the co-operation Amendment 112 – Article 33 (2a) is

Some of the state members, such as UK, Ireland, Germany, Austria and Hungary
have reserves concerning the European Council document but the French
government is pushing to see its system imposed on all EU members.

In an attempt to influence the German government’s position, a seminar, “on
the development of Creative content online” was organized by the French
embassy in Berlin with the title “Can the Olivennes agreement set the course

for the digital future?”. During the seminar, German MEP Ruth Hieronymi
clearly stated that co-operation amendment 112 of the Harbour report in the
Telecoms Package provided the basis for the graduated response in EU law. “I
am absolutely convinced, that the legal framework is there, to fashion a
model like Olivennes that is compatible with European law” she stated in
relation to the Telecoms Package.

The MEP also claimed personal responsibility for the withdrawal of Amendment
132 in the Framework directive which opposed graduated response, and was in
direct conflict with Amendment 112 and the other pro-Olivennes measures.

Hieronymi’s comments show that the attempt to insert graduated response and
copyright enforcement measures into the Harbour report was deliberate. Which
means that a vote for the directive as it is now, will clearly be a vote for
graduated response. Unless there is no opposition form the governments
having shown some reserves, the law imposing the graduated response will be
passed to all EU countries by December, as the Council seems to have decided
to negotiate the document and not send it back to the EP for a second

European Council set to overturn Parliament on 3-strikes (15.10.2008)

Working Party on Telecommunications and Information Society – Compromise
Proposal for the consolidated version of the proposal amending directive
2002/22/EC (10.10.2008)

“Co-operation” amendment WAS designed to support 3-strikes (17.10.2008)

EDRIgram: EP votes Telecoms Package (8.10.2008)