Telecoms Package Amendment138 compromise 20091105

Text agreed unanimously in delegation meeting on November 5th 2009

Text to be inserted in Article 1:

"3a. Measures taken by Member States regarding end-users' access to or use of services and applications through electronic communications networks shall respect the fundamental rights and freedoms of natural persons, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and general principles of Community law.

Any of these measures regarding end-users' access to or use of service and applications through electronic communications networks liable to restrict those fundamental rights or freedoms may only be imposed if they are appropriate, proportionate and necessary within a democratic society, and their implementation shall be subject to adequate procedural safeguards in conformity with the European Convention for the Protection of Human Rights and Fundamental Freedoms and with general principles of Community law, including effective judicial protection and due process. Accordingly, these measures may only be taken with due respect for the principle of presumption of innocence and the right to privacy. A prior fair and impartial procedure shall be guaranteed, including the right to be heard of the person or persons concerned subject to the need for appropriate conditions and procedural arrangements in duly substantiated cases of urgency in conformity with European Convention for the Protection of Human Rights and Fundamental Freedoms. The right to an effective and timely judicial review shall be guaranteed."

Analysis

Problems

• Measures taken by Member States: The protection granted by the amendment only relates to measures taken by States, not private parties. Hence, restrictions imposed by operators at the request of right-holders do not fall under the scope of this provision. When the directive is transposed into national law, national lawmakers may be willing to broaden the scope of this provision to include private parties, most especially telecoms operators.

• Procedure: The text only mentions "a prior fair and impartial procedure" instead of a "prior ruling by the judicial authorities", guaranteed by the original [[amendment138]amendment 138], which is much more specific in terms of the safeguards attached to the procedure leading to the restriction of the Internet access.

• The principle of amendment 138 was really simple and consisted in a few words aimed at reaffirming the fundamental principle of separation of powers in the digital age, i.e. only judicial authorities can decide to limit fundamental rights and freedoms. This text is far too long, and much vaguer.

• Being in article 1 (scope) instead of article 8.4 (instructions to regulatory authorities), it goes from an efficient enforcement tool in the hands of national regulators to a general principle that will have to be interpreted and upheld in front of European Court of Justice.

Satisfactory elements

Mention of:

• a prior procedure before the implementation of restrictions to access to and uses of the Internet.
• the effective judicial protection and due process,
• the principle of presumption of innocence and the right to privacy

See also the amendment 138 plenary version