New EU regulation: law undermined by more back room dealing

The first phase of writing new regulation for EU telecoms took place last night when the parliamentary Industry, TRansport, Energy (ITRE) committee met to draw up rules from the period of consultation that has just concluded.

In short, ITRE surprisingly voted by 40 to 4 to reinstate the controversial Article 138, which protects users\' right of access, but this is no time to celebrate. The weasel words "conditions limiting access to and/or use of services and applications" were smuggled into Rapporteur Catherine Trautmann\'s final draft of the Framework Directive and are bad news indeed.

They were first tabled by the Universal Services directive rapporteur, Malcolm Harbour, in his own report, and they have now been carried over into the Access and Authorisation directives by Mrs Trautmann.

In the short-term, the problems are procedural. In the longer term they are potentially catastrophic for the future of the internet as we know it. They place power over our access to services and content the hands of Europe\'s largest telcos (and by extrapolation the big cellcos, which are owned by those same telcos in the main) and large, content-owning corporations, although companies such as Google in theory could also get in on the act.

Short term first: the result means that the Parliament is at loggerheads with the Council, and the whole Telecoms Package will go into third reading after the European elections in June.

"We will not know for sure however, until the plenary - full Parliament - vote on 5th May. It is usual for the plenary to follow the guidance of the Committee vote, but in  a contentious situation such as this, that does not necessarily follow," comments Monica Horten, a veteran telecoms journalist, currently working for her PhD on the political battle for online content in the EU, points out in her highly informative account of the proceedings.

The longer term implications are harder to grasp as trying to follow a single line through the thinking behind the review of the so-called telecoms package is like trying to herd cats. It is full on twists, turns and inconsistencies.

The first outrage was committed behind closed doors last October and without public debate and process - the scrapping of Amendment 138 by the European Council. The Amendment was a simple restatement of a fundamental part of European law, to wit, only the judicial authority can order restrictions on fundamental rights and freedoms, including access to internet content and services.

It was designed to guard against the introduction, favoured by the French and British governments, of obliging ISPs to suspend users\' access to the internet for transgressions as prescribed by the government, such as downloading content illegally, without recourse to the judiciary.

This is often referred to as the three-strikes, incremental response or specifically in the French case, Hadopi, after the public authority which Sarkozy wanted to set up to impose sanctions on naughty French users, although it is not a court of law. Those who oppose the three strikes/interceptor approaches argue that it sets up a parallel administrative system that is in direct contradiction of the principle of European law quoted in Article 138.

Article 138 was approved by 88% of the Members of the European Parliament in first reading of the EU Telecoms Package, on September 24th 2008.



The French President recently failed to force his Hadopi bill through the French parliament, due to a lack of support from the right and staunch opposition from the left who argued it was more about protecting the rights of large corporations (copyright, for instance) than those of citizens.

The British government used dodgy tactics to oblige ISPs to spy  on its citizens in the wake of the July bombings in 2005. It is also doggedly trying to force and to shop users and cut them off for contravening governmental guidelines, without involving the courts.

Despite the overwhelming support for Article 38 by the European Parliament, it "was then deleted without any justification by the Council of the EU, under strong pressure by Nicolas Sarkozy, during the French presidency of the EU and the British government," campaigning group La Quadrature du Net   said on its website.

This was bad news indeed as it has wider repercussions than the French or British governments probably foresaw, for example, allowing service providers to block access to services for commercial reasons, as demonstrated by T-Mobile\'s refusal to allow its iPhone customers to use Skype on its network. This is clearly straightforward protectionism - of its voice cash cow - although the operator came up with some ridiculous story about network incompatibility concerns. As if.

However the European Council, Commission and Parliament don\'t appear to be aware of the dangers, with the Commission taking the attitude that this a separate issue, covered by EU Competition Law.

Caroline De Cock, executive director, VON Coalition Europe (the organisation through which Skype voiced its objection to the European Parliament, Council and Commission about T-Mobile\'s behaviour) explains, "The wording is woolly and so is the thinking. The argument seems to be that in this instance that if operators block access to applications in users\' contracts, then competition law protects users because they can vote with their feet and move to another network.

"But what happens when all the operators within a country block certain applications‾ How are the consumer\'s rights and their right to choice protected then‾"

Horten, a veteran telecoms journalist, currently working for her PhD on the political battle for online content in the EU, points out," I have been studying EU competition law carefully and cannot see that it covers this issue anyway. This issue spills into the second bundle of Directives that have a bearing on the telecoms package review, which include universal service and users\' rights, and e-privacy."  

Which of course, opens other cans of worms. How can the European bodies take this stance, when Commissioner Reding is so vociferously opposing the perceived e-privacy being breached (cf the UK government and BT\'s proposed use of Phorm to track users\' online behaviour, the better to serve them targeted adverts and gunning for the UK government itself for failing to protect consumers\' rights) and the entire central principle of network neutrality that the Commission insists it will uphold, despite attempts to undermine it.

After what happened last night, we should all feel much less confident about that pledge and the future of the internet as we know it.