Changes in the telecom package adopted by the Council

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A political agreement on the telecom package was reached by the EU Council
on 27 November 2008. Even though the final text does not support the 3
strikes measures proposed by the French Presidency, it has also deleted some
important amendments adopted by the European Parliament in order to
safeguard the citizen’s fundamental rights.

Austria and Denmark have spoken up for keeping the Amendment 138 during the
Council meeting. Bulgaria, Hungary and Poland joined them in an attempt to
provide safeguards for users in the event of any attempts to sanction them
or restrict their access to content on the Internet. They asked the
exclusion of any issues related to copyright enforcement and the promotion
of creative content instead. But in the end, the Council decided the
deletion of this amendment, the only pretext expressed being that the
wording was too broad.

The new text of the modified Universal Services Directive allows the
national regulatory authorities to “promote cooperation between undertakings
providing electronic communications networks and/or services and the sectors
interested in the promotion of lawful content in electronic communication
networks and services.” The adopted recitals makes it clear that any
cooperation procedures will not allow for systematic Internet monitoring and
that the Member States, and not the electronic communication providers, have
to “decide, in accordance with due process, whether content, applications or
services are lawful or harmful or not.”

The decision of the Telecom Council to reject the 3 strike scheme, comes
after the EU culture ministers took a similar decision on 20 November. They
also suggested promoting legal offers of music or films on the Internet. The
EU Culture Council considered that “a fair balance between the various
fundamental rights” needs to be establishedwhile fighting online piracy,
first listing “the right to personal data protection,” then “the freedom of
information” and only lastly “the protection of intellectual property”.

In fact, the Commission has already sent a number of critical comments on
the French draft law on 3 strikes, suggesting a long series of changes in
order to comply with the European legislation.

The text adopted by the European Telecom Council is not so positive from
the privacy point of view. Thus, the Council has rejected the suggestion
of the Parliament to allow a study on Internet Protocol (IP) addresses and
their use that should have been promoted by the Commission.

The Council has decided to keep Art 6 par 6 (formerly amendment 181 adopted
by the European Parliament) that has been interpreted as an open door for
voluntary data retention. Thus, the German actions to push for the rejection
of the amendment 181 in the Telecom Council did not found a majority,
despite the public position of the German federal minister of economic
affairs Michael Glos. He agreed with a number of civil society
representatives that this amendment “would create unmanageable data dumps
and thus expose sensitive data on our communications and movements to risks
of abuse.”

The Telecom Council has taken the European Commission’s point of view in
restricting the obligation for personal data breach notification only for
electronic communication providers, thus excluding the Parliament amendment
that extended this provision also to “any company operating on the
Internet, providing services to consumers, which is the data controller and
provider of information society services.”

The Council has also limited the number of cases when the notification to
the competent Authority and affected individuals is mandatory only in cases
representing “a serious risk for subscriber’s privacy.”

This common position adopted by the Telecom Council is a base for new
negotiations between EU Bodies, that could meetthis month. Also, a new
informal meeting of the Telecom ministers is already scheduled on 17
February. The second reading of the European Parliament on the agreed text
could take place at the beginning of 2009.

2907th Transport, Telecommunications and Energy Council meeting (provisional
version) – (27.11.2008)
http://www.consilium.europa.eu/cms3_applications/Applications/newsRoom/LoadDocument.asp?directory=en/trans/&filename=104387.pdf

European Council – Reviewed ePrivacy Directive (27.11.2008)
http://register.consilium.europa.eu/pdf/en/08/st15/st15896.en08.pdf

European Council – Reviewed Universal Service Directive (27.11.2008)
http://register.consilium.europa.eu/pdf/en/08/st15/st15899.en08.pdf

Federal government supports opposition against “voluntary data retention”
(25.11.2008)
http://www.vorratsdatenspeicherung.de/content/view/280/79/lang,en/

EU states bin telecoms ‘super-regulator’ idea (27.11.2008)
http://euobserver.com/19/27192

Citizen safeguards striked out in EU Council (26.11.2008)
http://www.laquadrature.net/en/citizen-safeguards-striked-out-in-EU-council

Bulgaria, Hungary, Poland – only EU members on the same page vis-a-vis
Internet content control (1.12.2008)

Bulgaria, Hungary, Poland – only EU members on the same page vis-a-vis Internet content control

European Council opposes Parliament on Amendment 138 (27.11.2008)
http://www.iptegrity.com/index.php?option=com_content&task=view&id=212&Itemid=9

EU ministers reject ban on free downloading (21.11.2008)
http://www.euractiv.com/en/infosociety/eu-ministers-reject-ban-free-downloading/article-177379

Denmark and Austria speak up for citizens rights (27.11.2008)
http://www.iptegrity.com/index.php?option=com_content&task=view&id=211&Itemid=9

Commission response to France’s obligation of notification for its
“graduated response” law (only in French, 27.11.2008)
http://www.latribune.fr/entreprises/communication/telecom-internet/20081127trib000314818/loi-antipiratage-sur-internet-les-observations-de-bruxelles-.html

EDRi-gram: Data breach notification – different opinions in EU bodies?
(19.11.2008)
http://www.edri.org/edri-gram/number6.22/data-breach-ec