URGENT action Parliament about to authorize European three strikes
The Conciliation committee delegation of the European Parliament will meet on November 4th, 18h. They might agree on replacing amendement 138 (strong protection for citizens freedoms online voted twice by 88% of the European Parliament) by a weak, neutralized version that leaves door open for "three strikes", "HADOPI"-like legislations all around Europe.
The Parliament delegation hides itself behind easily debunkable legal arguments, to mask its political will to agree with the Council and to quickly finish the Telecoms Package, renouncing to their commitment towards preserving citizens.
- 1 When?
- 2 Who?
- 3 What?
- 3.1 Key points
- 3.2 Sources of analysis and argumentation
- 3.3 Arguments and counter-arguments
- 4 General advices
- 5 Sample phone call
- 6 Campaigning material
It is crucial to contact members of the Conciliation Committe delegation of the European Parliament, and their substitutes, before their meeting on November 4th, 19h!!!. Parliament is closed on monday, November 2nd, so start calling on tuesday morning. Time is short!
Call by clicking from this list of the 27 Members of the European Parliament in the conciliation committe and their substitutes, sortable by country, political group, or score to the previous votes of the Telecoms Package.
It is important to contact members of every political group !
- A new formulation has been proposed by the Council for a replacement of amendment 138, very strong protection of citizens freedoms online voted twice by 88% of the European Parliament. This rewording completely neutralizes protection of citizens compared to the original amendment 138.
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 the above measures liable to restrict those fundamental rights or freedoms may therefore only be imposed if they are appropriate, proportionate and necessary within a democratic society, and 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 shall respect the requirements of a fair and impartial procedure including the right to be heard of the person of persons concerned and the right to an effective and timely judicial review. This shall not affect the competence of a Member State, in conformity with its own constitutional order and with fundamental rights, to establish, inter alia, a requirement of a judicial decision authorising the measures to be taken".
Problems with the Council's wording
See the wording of latest Council's proposal (2009/10/28)
The Council's compromise turns the neutral Parliament compromise agreed on Oct.20th into a bad compromise allowing all kind of "three strikes" and restriction of Net access in Europe:
- In this proposal, the very weak protections are only related to "measures taken by member states" (instead of "any measures"), clearly showing the will of the Council to allow private actors to reduce citizens freedoms on the Internet.
- There is no mention of a "prior decision" by a competent judge before measures are implemented. Therefore, people could be deprived from their Internet access before being able to challenge the restrictions before a competent court.
- There is no mention of people's rights regarding the access and use of content (only services and applications).
- Taken together, these various flaws like show that administrative authorities or private actors (like telecom operators or entertainment industries) could implement "three strikes" schemes or other anti Net neutrality policies.
- The Parliament delegation is justifying to support the Council's view with a analysis justifying to drop the original 138, that was customily crafted to serve this purpose. But the argument put forward in this analysis can be refuted (See our memo).
- The Parliament must not give up citizens' fundamental freedoms. The only acceptable orientation would be to start with the original amendment 138 text, and adapt it, instead of accepting a much dangerous compromise. This is what this proposal does. It takes into account the good-faith concerns expressed against the original version of amendement 138. Located in article 8.4.h of the Framework directive, it gives National Regulatory Authorities shall promote the interests of the citizens of the European Union by:
"applying the principle that any restrictions to the access and usage of electronic communications services, in that they prevent the practical exercice of freedom of expression and communication and in order to ensure the proportionality of any such restriction, may only be imposed subsequentely to a decision by the judicial authorities, in accordance with the European Convention for the Protection of Human Rights and Fundamental Freedoms."
- Amendment 138 was voted 2 times in the EU "Telecoms Package" by 88% of the European Parliament. It is an essential safeguard to citizens fundamental rights, stating that "no restriction on fundamental rights and freedom (can be taken) without a prior ruling by the judicial authorities". This a very strong restatement of current EU law, and is under threat by such projects as the French "three strikes" HADOPI law, or similar projects in UK, etc.
- The Council of EU has disagreed since the beginning with this amendment. They tried to remove, with no justification, several times. Now it is the only point of disagreement between the Council and the European Parliament. It is currently being negotiated right in the conciliation procedure
Sources of analysis and argumentation
You can find arguments to talk to them in the following documents and sources:
- Memo transmitted to the conciliation committe MEPs about how to improve amendment 138 while preserving its core principles
- Background info and political analysis: Net Freedoms in Europe - Recapitulating the Capitulation
- Rewording of amendment 138 preserving its core principles, sent to the conciliation MEPs
- Text for the bad compromise
- Memo debunking the Council's arguments about am.138
- Letter sent to the Members of the European Parliament, about debunking Council's arguments.
Arguments and counter-arguments
If you encounter blocking arguments during your conversations, please notify us (contact AT laquadrature . net) and/or list them below.
"The Council's proposal sufficiently protects citizens' rights and freedoms
- The proposal lets "three strikes" HADOPI-like policies, that clearly violate fundamental rights, be put in place
- more details about the Council's proposal
"Am 138 is not legal according to article 95 of the European Union Treaty"
Some counter-arguments can be found here, but generally:
- Decisions around article 95 already aknowledge that the Parliament could overcome its competency for the sake of Internal Market. In its original form with some interpretation, or in a reworded version, it is clear that restricting access to the Internet is a matter of Internal Market (especially knowing that it is a tool in the hands of national regulators, and that the whole package is about internal market).
- the copyright (or IPRED) directive's provisions oblige member States to ensure that right-holders can bring actions before national courts. Interestingly, the “IPRED” directive was adopted on the basis of article 95 CE
- The European Court of Justice's jurisprudence on article 95 is fluctuating. The definite criteria is whether the mention of a prior procedure by a judicial court contributes to the functionning of the European telecommunications market, which it does.
- Whatever the legal problem is, it can be addressed by modifying the wording of amendment 138, nothing justifies to accept the horrible comprmise.
"Am 138 is to broad"
- The notion of "fundamental rights and freedoms" can be narrowed in a rewording of the original amendment that would only refers to the "access and usage of electronic communications services".
"EP legal service said ...."
The legal services' opinion is biased to fit the rapporteur's arguments. It omits to mention jurispurdence that seems to indicate that the Parliament does have the power to pass amendment 138. It is also worryingly uncritical of the Council's proposal.
- A phone call is 100 times more efficient than an email! Phonecalls are personal and are harder to avoid than emails.
- A cut/paste email has *negative* impact: it weakens the content and make it look like spam.
- MEPs assistants who will answer are most of the time young and intelligent people who understand the importance of these issues. All of them use Internet.
- Always be polite in your communications. MEPs and their assistants are people just like us.
- After sending a short email explaining your concerns in a few words, and containing as an attachment the memo of La Quadrature, you can make a phone call. This may be more useful as it has more impact than an email. (MEP's offices are saturated with mails)
- Don't hesitate to offer to send additional information by email, as a follow-up.
- Even if your correspondent offers to call back, don't hesitate to call back. MEPs and their assistants are often very busy. They will also offer to call you back as a way of getting rid of you. ;)
- If the MEP is from your country, you can address her/his assistant in your language. All of them speak good English, many of them also speak French.
- If you don't find the answer to a question, note it down and offer you correspondent to call back once you'll have it. Don't hesitate to submit it to us (contact AT laquadrature.net, #laquadrature on irc.freenode.net or discussion list: discut AT laquadrature.net)
- As a rule: have at hand what you need for note taking, to note down the name of your correspondent, information they might give you, a list of blocking points you may work on before calling back, remaining questions, documents you need to send to them, etc. Send feedback for your call on this page, or by mail at (contact (AT) laquadrature . net)
Sample phone call
Here is an example phone, to help you to know how to talk to MEPs assistants:
- YOU: "Hello, I would like to talk to Mrs/Mr MEP, please."
- Assistant: "Mrs/Mr MEP is not available, I am her/his assistant. Can I help you?"
- YOU: "I am MyName, calling from MyCountry, I am very much concerned by the compromise text that will be presented in delegation meeting at 11AM."
- Assistant: "I see. We had calls before. I have no time."
- YOU: "But it is very important! I want to know what Mrs/Mr MEP thinks about the compromise text, because I think it is very dangerous, and that the analysis by the EP legal service is really dubious."
- Assistant: "There is nothing wrong with the compromise. It's the original amendment that has a problem, it is illegal according to article 95."
- YOU: "Article 95 jurisprudence is fluctuating, and the compromise say that the fundamental right to a due trial is optional, and can be bypassed in order to detect or prevent crime! This is extremely scary and not at all conform to the spirit of amendment 138. But aside from that one might ask: 'Why would the Parliament, after voting twice am.138 by 88% of its members, accept such a compromise from the Council?' Negotiations should start with the original text from am.138, so the Parliament stands strong!"
- Assistant: "There are lots of problems with amendment 138."
- YOU: "All these problems could be addressed by rewording! The Council didn't explain yet what was its problems with the specific wording of am. 138! the scope of 'fundamental rights and freedoms' could be for instance narrowed, the reference to the Charter of fundamental rights removed, etc."
- Assistant: "Well... "
- YOU: "Will you please ask Mrs/Mr MEP to take my call into consideration? Citizens expect the Parliament they elect to defend their freedoms, even when the Council wants to restrict them! Internet is essential for exercising freedom of speech, and so structuring for our societies, its innovation, and competition. Only a judge should be able to restrict Internet!"
- Assistant: "I'll tell Mrs/Mr MEP."
- YOU: "Thank you very much for listening to me. I'll call you again shortly to know what he thought. Have a good day."