LIBE Draft Opinion on Single Market Regulation

De La Quadrature du Net

Amendment 1[modifier]

Proposal for a regulation
Citation 2 a (new)

Text proposed by the Commission

Amendment

Having regard to Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data,


Justification: The addition of that citation aims to strengthen the legal basis of the Regulation and hence to protect European citizens' personal data, as set out in article 8 of the Charter of Fundamental Rights of the European Union.


Amendment 2[modifier]

Proposal for a regulation
Citation 3a (new)

Text proposed by the Commission

Amendment

Having regard to Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data


Justification: cf. supra


Amendment 3[modifier]

Proposal for a regulation
Citation 4a (new)

Text proposed by the Commission

Amendment

Having regard to the Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector,

Justification: cf. supra


Amendment 4[modifier]

Proposal for a regulation
Recital 46

Text proposed by the Commission

Amendment

(46) The freedom of end-users to access and distribute information and lawful content, run applications and use services of their choice is subject to the respect of Union and compatible national law. This Regulation defines the limits for any restrictions to this freedom by providers of electronic communications to the public but is without prejudice to other Union legislation, including copyright rules and Directive 2000/31/EC.

(46) The freedom of end-users to access and distribute information and lawful content, run applications and use services of their choice is subject to the respect of Union and compatible national law. This Regulation defines the limits for any restrictions to this freedom by providers of electronic communications to the public but is without prejudice to other Union legislation, including copyright rules and Directive 2000/31/EC on electronic commerce and Article 13 of Directive 95/46/EC and Article 15 of 2002/58/EC, which define the limits to traffic management measures from the data protection and privacy perspective.


Justification: This amendment is very welcome. As La Quadrature du Net indicated in its proposed amendment 2, the reference to Directives 1995/46 and 2002/58 allows the strict framing of the application of traffic management measures that are potentially dangerous from a data protection and privacy perspective. However the maintain of "lawful", referred to a content to be distributed by end-users, will severely hamper the freedom of expression and information of the end-users, who do not have the means to judge the lawfulness of that content. Only the judicial authority is entitled to judge the lawfulness of a content.

Amendment 5[modifier]

Proposal for a regulation
Recital 58 a (new)

Text proposed by the Commission

Amendment

(58a) The processing of personal data referred to in Regulation of the European Parliament and of the Council laying down measures concerning the European Single Market for electronic communications and to achieve a Connected Continent should comply with Directive 95/46 of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data, which governs the processing of personal data carried out in the Member States pursuant to this Regulation and under the supervision of the Member States' competent authorities, in particular the independent public authorities designated by the Member States, and with Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector.


Justification: This amendment is on the same wavelength as amendments 1, 2 and 3 on citations. It aims at strengthening the reference and the compliance of the Regulation to the EU legal framework on data protection, in order to preserve the confidentiality of communications and the fruition of an open Internet.


Amendment 6[modifier]

Proposal for a regulation
Article 4 - paragraph 5

Text proposed by the Commission

Amendment

5.The national regulatory authority of the home Member State shall forward the information received in accordance with paragraph 2 and any change to that information in accordance with paragraph 3 to the national regulatory authorities of the concerned host Member States and to the BEREC Office within one week following reception of such information or any change. The BEREC Office shall maintain a publicly accessible registry of notifications made in accordance with this Regulation.

5. The national regulatory authority of the home Member State shall forward the information received in accordance with paragraph 2 and any change to that information in accordance with paragraph 3 to the national regulatory authorities of the concerned host Member States and to the BEREC Office within one week following reception of such information or any change. The BEREC Office shall maintain a publicly accessible registry of notifications made in accordance with this Regulation. Regardless of the format (electronic or printed) of the registry selected by BEREC Office, the latter should apply adequate security measures in its maintenance of the registry, in accordance with Article 22 of Regulation (EC) No 45/2001.


Justification: The rapporteur clarifies, once more, the legal framework of the Regulation and provides for measures geared towards guaranteeing the security of data processing by community institutions and bodies.


Amendment 8[modifier]

Proposal for a regulation
Article 17 - paragraph 2

Text proposed by the Commission

Amendment

2. The Commission shall be empowered to adopt delegated acts in accordance with Article 32 in order to adapt Annex I in light of market and technological developments, so as to continue to meet the substantive requirements listed in paragraph 1.

deleted


Justification: This amendment is out of our purview.


Amendment 9[modifier]

Proposal for a regulation
Article 19 - paragraph 4 - point e

Text proposed by the Commission

Amendment

(e) ensuring that the rules on protection of privacy, personal data, security and integrity of networks and transparency in accordance with Union law are respected.

(e) ensuring that the rules on protection of privacy, personal data, security and integrity of networks and transparency in accordance with Union relevant law are respected in a way to entail respect for the confidentiality, integrity and security of the data processed within the course of transmitting communications over the network.


Justification: Even if the amendment by the rapporteur represents a good contribution to the confidentiality of communication, La Quadrature du Net suggests deleting article 19 as a whole. Entailing potential threats for innovation and fair competition, any prioritisation of the Assured Service Quality products deserves a much more in-depth analysis by NRAs and civil society organisations, who have not been consulted on this specific issue.


Amendment 10[modifier]

Proposal for a regulation
Article 19 - paragraph 5

Text proposed by the Commission

Amendment

5. The Commission shall be empowered to adopt delegated acts in accordance with Article 32 in order to adapt Annex II in light of market and technological developments, so as to continue to meet the substantive requirements listed in paragraph 4.

deleted


Justification: This amendment is out of our purview.


Amendment 11[modifier]

Proposal for a regulation
Article 23 - paragraph 3

Text proposed by the Commission

Amendment

3. This Article is without prejudice to Union or national legislation related to the lawfulness of the information, content, application or services transmitted.

deleted


Justification: This amendment is warmly welcomed. As La Quadrature du Net indicated in its proposed amendment 14, the lawfulness of the content cannot become the basis for traffic management measures, or a way “to discriminating against, degrading or blocking any content deemed unlawful” (cf. point 19 of the European Data Protection Supervisor's opinion). The legal authority is the only one entitled to evaluate the lawfulness or the unlawfulness of a content. On the contrary, the risk of extra-judicial censorship, through privacy-invasive methods (such as the so-called deep packet inspection) could become much more real.


Amendment 12[modifier]

Proposal for a regulation
Article 23 - paragraph - 5 point a

Text proposed by the Commission

Amendment

5. Within the limits of any contractually agreed data volumes or speeds for internet access services, providers of internet access services shall not restrict the freedoms provided for in paragraph 1 by blocking, slowing down, degrading or discriminating against specific content, applications or services, or specific classes thereof, except in cases where it is necessary to apply reasonable traffic management measures. Reasonable traffic management measures shall be transparent, non-discriminatory, proportionate and necessary to:

5. Within the limits of any contractually agreed data volumes or speeds for internet access services, providers of internet access services shall not restrict the freedoms provided for in paragraph 1 by blocking, slowing down, degrading or discriminating against specific content, applications or services, or specific classes thereof, except in cases where it is necessary to apply reasonable traffic management measures. Reasonable traffic management measures shall be transparent, non-discriminatory, proportionate and necessary to:

(a) implement a legislative provision or a court order, or prevent or impede serious crimes;

(a) implement a legislative provision or a court order, or for the prevention, investigation, detection and prosecution of criminal offences as laid down in article 15 of Directive 2002/58/EC;


Justification: Preventing or impeding a serious crime is a task that must be performed by a judge, in accordance to the rule of law. No exception can be accepted, especially under the regime of a traffic management measure.


Amendment 13[modifier]

Proposal for a regulation
Article 23 - paragraph 5 - point aa (new)

Text proposed by the Commission

Amendment

(aa) provide clear and specific information on communication inspection techniques that are allowed;


Justification: Article 23.5 of the proposal lists the different scenarios in which traffic management measures are deemed reasonable. For that purpose, and in order to defend the confidentiality of communications, it is highly necessary that traffic management measures are as transparent as possible, which is the legitimate goal of the rapporteur's amendment. However the intent of the amendment seems to be incoherent with the introductive wording of the text, which is: “Reasonable traffic management measures shall be transparent, non-discriminatory, proportionate and necessary to:”


Amendment 14[modifier]

Proposal for a regulation
Article 23 - paragraph 5 - point c

Text proposed by the Commission

Amendment

(c) prevent the transmission of unsolicited communications to end-users who have given their prior consent to such restrictive measures;

(c) prevent the transmission of unsolicited communications to end-users who have given their prior consent to such restrictive measures. Such consent should be informed, specific and unambiguous, as well as freely given;


Justification: This amendment is very welcome. As La Quadrature du Net pointed out in its proposed amendment 18, an explicit, informed and freely given consent guarantees a conscious choice by end-users, who are thereby able to decide whether to accept those restrictive measures or not.


Amendment 15[modifier]

Proposal for a regulation
Article 23 - paragraph 5 - subparagraph 2

Text proposed by the Commission

Amendment

Reasonable traffic management shall only entail processing of data that is necessary and proportionate to achieve the purposes set out in this paragraph.

Reasonable traffic management shall only entail processing of data that is necessary and proportionate to achieve the purposes set out in this paragraph. In no case, sensitive data as defined in Article 8 paragraph 1 of Directive 95/46/EC shall be processed.


Justification: The amendment improves the Commission's text as it provides a guarantee for the processing of end-users' sensitive data. However it would be preferable to extend the protection to include all data and not just sensitive data.


Amendment 16[modifier]

Proposal for a regulation
Article 24 - paragraph 1

Text proposed by the Commission

Amendment

1. National regulatory authorities shall closely monitor and ensure the effective ability of end-users to benefit from the freedoms provided for in Article 23(1) and (2), compliance with Article 23(5), and the continued availability of non-discriminatory internet access services at levels of quality that reflect advances in technology and that are not impaired by specialised services. They shall, in cooperation with other competent national authorities, also monitor the effects of specialised services on cultural diversity and innovation. National regulatory authorities shall report on an annual basis to the Commission and BEREC on their monitoring and findings..

1. National regulatory authorities shall closely monitor and ensure the effective ability of end-users to benefit from the freedoms provided for in Article 23(1) and (2), compliance with Article 23(5), and the continued availability of non-discriminatory internet access services at levels of quality that reflect advances in technology and that are not impaired by specialised services. They shall, in cooperation with other competent national authorities and data protection authorities, also monitor the effects of specialised services on cultural diversity and innovation. National regulatory authorities shall report on an annual basis to the Commission and BEREC on their monitoring and findings. This monitoring shall comply with the principle of confidentiality of communications and shall not imply processing of personal data.


Justification: The amendment strengthens the confidentiality of communications and the privacy and protection of personal data in the framework of cooperation between NRAs. However, La Quadrature du Net suggests some additional improvements as indicated in its proposed amendment 21. In particular, they consider as mandatory the creation of an enforcement mechanism, through which NRAs could put in place appropriate, clear, open and efficient procedures aimed at addressing network neutrality complaints and defend thereby their freedom of expression and information. To this end, all Internet users shall be entitled to make use of such complaint procedures in front of the relevant authority.


Amendment 17[modifier]

Proposal for a regulation
Article 25 - paragraph 1

Text proposed by the Commission

Amendment

1. Providers of electronic communications to the public shall, save for offers which are individually negotiated, publish transparent, comparable, adequate and up-to-date information on:

1. Providers of electronic communications to the public shall, save for offers which are individually negotiated, publish transparent, comparable, adequate and up-to-date information in a clear, comprehensive and easily accessible manner on:


Justification: The amendment strengthens the providers' obligation to be as transparent as possible in providing information on end-users' contract details.


Amendment 18[modifier]

Proposal for a regulation
Article 25 - paragraph 1 - point iv a (new)

Text proposed by the Commission

Amendment

(v) clear and adequate information on traffic management measures applied for the purposes listed in Article 23(5) of the proposal.


Justification: Article 25.1(e) does not presuppose the provision of information on traffic management measures for purposes listed in article 23.5, which is very important in order to prevent ISPs from breaching transparency and protection of privacy, personal data and confidentiality of information. Since the communication inspection techniques – susceptible to be used in the framework of traffic management measures – are highly privacy-invasive, they should deserve a special mention in the amendment.


Amendment 19[modifier]

Proposal for a regulation
Article 26 - paragraph 1 - point g

Text proposed by the Commission

Amendment

(g) where an obligation exists in accordance with Article 25 of Directive 2002/22/EC, the end-users' options as to whether or not to include their personal data in a directory, and the data concerned;

(g) where an obligation exists in accordance with Article 25 of Directive 2002/22/EC, the end-users' options as to whether or not to include their personal data in a directory, and the data concerned; the processing of personal data included in such a directory shall comply with provisions of Article 12 of the Directive 2002/58/EC.


Justification: The amendment clarifies the referential legal framework and guarantees that end-users will be informed about the use of their personal data gathered in that directory.


Amendment 20[modifier]

Proposal for a regulation
Article 26 - paragraph 2 - point fa (new)

Text proposed by the Commission

Amendment

(fa) Information on actions referred to in Article 26 (1)(j), and their potential effect on end-users' privacy and data protection rights.


Justification: The amendment is in line with point 26 of the opinion of the EDPS. It aims at preventing traffic management measures, provided for in article 26.1(j) and implemented by Internet providers, that could be used as a way to unduly process personal data.


Amendment 21[modifier]

Proposal for a regulation
Article 27 - paragraph 4

Text proposed by the Commission

Amendment

4. Providers of electronic communications to the public shall offer end-users the opportunity to opt, free of charge for receiving itemised bills.

4. Providers of electronic communications to the public shall offer end-users the opportunity to opt, free of charge for receiving itemised bills, provided that right to privacy of calling users and called subscribers are duly respected.


Justification: The proposal of the EC needs to be improved in order to comply with article 7.1 of Directive 2002/58 concerning the processing of personal data and the protection of privacy in the electronic communications sector. The non-itemised bills guarantee a greater protection of confidentiality of communication since they do not reveal the identity of call addresses or calling subscribers. For these reasons, the amendment proposed by the rapporteur is very welcome. However, it would be preferable to add the wording “according to article 7.1 of the Directive 2002/58 EC” as this would better clarify the referential legal framework.