Telecoms Package 2nd Reading ITRE IMCO Amendments
In the following amendments, amended text with regard to Council's common position is highlighted in bold italics. In the case of amending acts, passages in an existing provision that the Council has left unchanged, but that Parliament wishes to amend, are highlighted in bold. Any deletions that Parliament wishes to make in passages of this kind are stroke out.
This page will be updated as new amendments are filed and our analysis deepened.
Sommaire
- 1 COD/2007/0247 - Trautmann report (framework, access, authorisation)
- 1.1 Amendment 42 -
- 1.2 Amendment 45 ---
- 1.3 Amendment 46 +++
- 1.4 Amendment 83
- 1.5 Amendment 85 --
- 1.6 Amendment 90 --
- 1.7 No Amendment to Article 9 − Paragraph 2 − point e of Access Directive -
- 1.8 Amendment 107 --
- 1.9 Amendment 134 +++
- 1.10 Amendment 135 +++
- 1.11 Amendment 150 == Amendment 151 ++
- 1.12 Amendment 166 == Amendment 167
- 2 COD/2007/0248 - Harbour report (universal service, ePrivacy)
- 2.1 No Amendment to Recital 20 --
- 2.2 Amendment 5
- 2.3 Amendment 6 ++
- 2.4 No Amendment to Recital 23 --
- 2.5 Amendment 9
- 2.6 Amendment 17 --
- 2.7 Amendment 18 +
- 2.8 Amendment 19 +
- 2.9 Amendment 21
- 2.10 Amendment 43
- 2.11 Amendment 49
- 2.12 Amendment 53
- 2.13 Amendment 72 +++
- 2.14 No Amendment to Article 33 − Paragraph 3 of Universal Service Directive ---
- 2.15 Amendment 74 +
- 2.16 Amendment 85 --
- 2.17 Amendment 103
- 2.18 Amendment 150 +++
- 2.19 Amendment 109 +++
- 2.20 Amendment 111 +++
- 2.21 Amendment 115 +++
- 2.22 Amendment 116 ---
- 2.23 Amendment 117 == Amendment 118 ---
- 2.24 Amendment 135 +++
COD/2007/0247 - Trautmann report (framework, access, authorisation)
DRAFT RECOMMENDATION FOR SECOND READING
on the Council common position for adopting a directive of the European Parliament and of the Council amending Directives 2002/21/EC on a common regulatory framework for electronic communications networks and services, 2002/19/EC on access to, and interconnection of, electronic communications networks and associated facilities, and 2002/20/EC on the authorisation of electronic communications networks and services (16496/1/2008 – C6-0066/2009 – 2007/0247(COD))
Committee on Industry, Research and Energy (ITRE), rapporteur Catherine TRAUTMANN
Amendment 42 -
- Article 1 – point 8 – point a amending Directive 2002/21/EC Article 8 – paragraph 1 – subparagraph 2
Unless otherwise provided in Article 9 regarding radio frequencies or unless otherwise required in order to fulfil the objectives laid down in paragraphs 2 to 4, Member States shall take the utmost account of the desirability of making regulations technologically neutral and shall ensure that, in carrying out the regulatory tasks specified in this Directive and the Specific Directives, in particular those designed to ensure effective competition, national regulatory authorities do likewise.
The addition of "paragraphs 2 to 4" in exceptions to network neutrality can be dangerous if amendment 45 (8.4.g) is passed.
- Voting recommendation: reject
Amendment 45 ---
- Article 1 – point 8 – point fa amending Directive 2002/21/EC Article 8 – paragraph 4 – point fa
(fa) applying the principle that end-users should be able to access and distribute any lawful content and use any lawful applications and/or services of their choice;
The notion of unlawful content is known to be applied to copyrighted content accessed or distributed without authorisation. As the rapporteur and the Council have stated, the Framework Directive has nothing to do with copyright. Therefore the amendment should be rejected or alternatively the word lawful should be deleted twice.
- Voting recommendation: against or should be amended as: (fa) applying the principle that end-users should be able to access and distribute any content and use any applications and/or services of their choice;.
Amendment 46 +++
- Article 1 – point 8 – point fb amending Directive 2002/21/EC Article 8 – paragraph 4 – point fb
(fb) applying the principle that no restriction may be imposed on the fundamental rights and freedoms of end- users, without a prior ruling by the judicial authorities, notably in accordance with Article 11 of the Charter of Fundamental Rights of the European Union on freedom of expression and information, save when public security is threatened in which case the ruling may be subsequent.
This amendment restores AM 138 adopted in 1st reading, which provides useful safeguards against other provisions laying grounds to "three-strikes approach" (graduated response).
- Voting recommendation: for.
Amendment 83
- Article 2 - point 2 - amending Directive 2002/19/EC Article 4 - paragraph 1
1. Operators of public communications networks shall have a right and, when requested by other undertakings so authorised in accordance with Article 4 of Directive 2002/20/EC (Authorisation Directive), an obligation to negotiate interconnection with each other for the purpose of providing publicly available electronic communications services or delivering broadcast content or information society services, in order to ensure provision and interoperability of services throughout the Community. Operators shall offer access and interconnection to other undertakings on terms and conditions consistent with obligations imposed by the national regulatory authority pursuant to Articles 5 to 8. However, the terms and conditions of interconnection shall not introduce unjustified barriers to interoperability.
Dividing interconnection negotiations into classes a) electronic communications services, b) broadcast content and c) information society services is indicative of a paradigm non-compliant with the universal charachter of technology neutral Internet information exchange, and invites introducing barriers on a network that is interoperable by design. Such a paradigm must be justified by research and impact assessments.
- Voting recommendation: (against).
Amendment 85 --
- Article 2 – point 3 – point aa (new) amending Directive 2002/19/EC Article 5 – paragraph 1 – point a
(aa) in paragraph 1, point (a) shall be replaced by: “(a) to the extent that is necessary to ensure end-to-end connectivity or fair and reasonable access to third-party services, obligations on undertakings that control access to end-users, including in justified cases the obligation to interconnect their networks where this is not already the case or to make their services interoperable on fair, transparent and reasonable terms;”
This amendment introduces "fair and reasonable access to third-party services" as an alternative to end-to-end connectivity which breaks the fundamental peer-2-peer architecture of the Internet. The original article wording is as follows: '(a) to the extent that is necessary to ensure end-to-end connectivity, obligations on undertakings that control access to end-users, including in justified cases the obligation to interconnect their networks where this is not already the case;'
- Voting recommendation: against or should be amended as: replace or with and
Amendment 90 --
- Article 2 – point 7 – point a amending Directive 2002/19/EC Article 9 – paragraph 1
1. National regulatory authorities may, in accordance with the provisions of Article 8, impose obligations for transparency in relation to interconnection and/or access, requiring operators to make public specified information, such as accounting information, technical specifications, network characteristics, restrictions on access to services and applications, traffic management policies, terms and conditions for supply and use, including traffic management policies, and prices.
The term traffic management policies is known to be used to establish network discrimination. And, while Council has used it in this provision as an example of terms and conditions for supply and use, here it is repeated as an obligation. Since some threats to network neutrality appear in Universal Service Directive, via the use of traffic management policies, it should be deleted in this paragraph. The fact that this paragraph establishes some obligations of transparency on network management policies leaves some place for network discrimination, if the term is not properly defined. Moreover, this obligation is followed by restrictions on access to service and applications which was the equivalent adopted by the European Parliament in first reading to the wording traffic management policies adopted by the Council in its Common Position.
- Voting recommendation: reject and add a recital: A network management policy is deemed non-discriminatory when it is ordered by a decision from the judicial authority, or when users can deactivate it at no extra cost, or when it is a temporary, short term, response to malicious activity or unpredictable occurrence threatening the integrity or security of the network, or end-user security. Such limitation must always be carried out without giving priority to selected users or content/service providers.
No Amendment to Article 9 − Paragraph 2 − point e of Access Directive -
This article still reads as follow:
2. When national regulatory authorities are considering the obligations referred in paragraph 1, and in particular when assessing how such obligations would be imposed proportionate to the objectives set out in Article 8 of Directive 2002/21/EC (Framework Directive), they shall take account in particular of the following factors: [...] (e) where appropriate, any relevant intellectual property rights;
As the rapporteur and the Council have stated, the Framework Directive has nothing to do with intellectual property rights, therefore this point should be deleted.
- Voting recommendation: propose an amendment deleting Article 9 − Paragraph 2 − point e of Access Directive.
Amendment 107 --
- Annex – point 2 – point h amending Directive 2002/20/EC Annex – part A – point 19
19. Transparency obligations on undertakings providing electronic communications services available to the public to ensure end-to-end connectivity, including unrestricted access to content, services and applications, in conformity with the objectives and principles set out in Article 8 of Directive 2002/21/EC (Framework Directive), disclosure regarding traffic management policies and, where necessary and proportionate, access by national regulatory authorities to such information needed to verify the accuracy of such disclosure.
This amendment circumscribe the basic right to end-to-end connectivity by allowing undertakings to defacto place restrictions on user's services. The logical effect of the word including is actually excluding unlimited access.
- Voting recommendation: against. Could be ameded as follows:
19. Transparency obligations on undertakings providing electronic communications services available to the public to ensure end-to-end connectivity, including unrestricted access to content, services and applications, in conformity with the objectives and principles set out in Article 8 of Directive 2002/21/EC (Framework Directive). Disclosure shall include traffic management policies and access by national regulatory authorities to such information needed to verify the accuracy of such disclosure.
If amended in such a way, the amendment adds some safeguards to users' right to access content, services and applications and gives a reason to delete the word lawful in Amendment 45 (Directive 2002/21/EC Article 8 – paragraph 4 – point fa) as suggested.
Amendment 134 +++
- Article 1 – point 8 – point f a (new) amending Directive 2002/21/EC Article 8 – paragraph 4 – point fa (new)
(fa) in paragraph 4, point (fa) shall be inserted: “(fa) applying the principle that end-users should be able to access and distribute any content and use any applications and/or services of their choice;”
Access and distribution of any content, and not only lawful content
- Voting recommendation: for.
Amendment 135 +++
- Article 1 – point 8 – point f b (new) amending Directive 2002/21/EC Article 8 – paragraph 4 – point f b (new)
(fb) in paragraph 4, point (fb) shall be inserted: “(fb) applying the principle that no restriction may be imposed on the fundamental rights and freedoms of end users, without a prior ruling by the judicial authorities, notably in accordance with Article 11 of the Charter of Fundamental Rights of the European Union concerning freedom of expression and information, save when public security is threatened in which case the ruling may be subsequent.”
Restores Amendment 138 of first reading, repeats Trautmann's 46.
- Voting recommendation: for.
Amendment 150 == Amendment 151 ++
- Article 2 – point 7 – point a amending Directive 2002/19/EC Article 9 – paragraph 1
1. National regulatory authorities may, in accordance with the provisions of Article 8, impose obligations for transparency in relation to interconnection and/or access, requiring operators to make public specified information, such as accounting information, technical specifications, network characteristics, terms and conditions for supply and use, including the purpose and effect of traffic management policies, and prices.
Transparency concerning the goals and consequences of traffic management policies.
- Voting recommendation: for.
Amendment 166 == Amendment 167
- Annex – point 2 – point h amending Directive 2002/21/EC Annex – part A – point 19
19. Transparency obligations on undertakings providing electronic communications services available to the public to ensure end-to-end connectivity, including unrestricted access to and distribution of content, services and applications, in conformity with the objectives and principles set out in Article 8 of Directive 2002/21/EC (Framework Directive), disclosure regarding traffic management policies and, where necessary and proportionate, access by national regulatory authorities to such information needed to verify the accuracy of such disclosure.
to be analysed
COD/2007/0248 - Harbour report (universal service, ePrivacy)
DRAFT RECOMMENDATION FOR SECOND READING
on the Council common position for adopting a directive of the European Parliament and of the Council on amending Directive 2002/22/EC on universal service and users’ rights relating to electronic communications networks, Directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communications sector and Regulation (EC) No 2006/2004 on cooperation between national authorities for the enforcement of consumer protection laws (16497/1/2008 – C6-0068/2009 – 2007/0248(COD))
Committee on the Internal Market and Consumer Protection (IMCO), rapporteur Malcolm HARBOUR
No Amendment to Recital 20 --
This recital still reads as follow:
(20) In order to address public interest issues with respect to the use of communications services and to encourage protection of the rights and freedoms of others, the relevant national authorities should be able to produce and have disseminated, with the aid of providers, public interest information related to the use of communications services. This information could include public interest information regarding copyright infringement, other unlawful uses and the dissemination of harmful content, and advice and means of protection against risks to personal security, which may for example arise from disclosure of personal information in certain circumstances, as well as risks to privacy and personal data. The information could be coordinated by way of the cooperation procedure established in Article 33(3) of Directive 2002/22/EC (Universal Service Directive). Such public interest information should be updated whenever necessary and it should be presented in easily comprehensible printed and electronic formats, as determined by each Member State, and on national public authority websites. National regulatory authorities should be able to oblige providers to disseminate this standardised information to all their customers in a manner deemed appropriate by the national regulatory authorities. When required by Member States, the information should also be included in contracts.
This recital has been identified to lay grounds to "three-strikes approach" (graduated response). If amendment 46 to Framework Directive, which provides some safeguards against this scheme, is not passed, it is better to delete this recital.
- Voting recommendation: propose an amendment deleting Recital 20.
Amendment 5
- Recital 22
(22) End-users should decide what content they require to be able to send and receive, and which services, applications, hardware and software they require to use for such purposes, without prejudice to the need to preserve the integrity and security of networks and services. A competitive market with transparent offerings as provided for in Directive 2002/22/EC should ensure that end-users are able to access and distribute any content and to use any applications and/or services of their choice, as stated in Article 8 of Directive 2002/21/EC. Given the increasing importance of electronic communications for consumers and businesses, users should in any case be fully informed of any limitations imposed on the use of electronic communications services by the service and/or network provider. Such information should, at the option of the provider, specify the type of content, application or service concerned, individual applications or services, or both. Depending on the technology used and the type of limitation, such limitations may require user consent under Directive 2002/58/EC.
Provides some safeguards against network discrimination. But type of limitation should not be specified at the option of the provider, since it would hinder transparency imposed on providers. Moreover this amendment gives a reason to delete the word lawful in Amendment 45 of ITRE draft report (Directive 2002/21/EC Article 8 – paragraph 4 – point fa) as suggested.
- Voting recommendation: for and should be amended to delete , at the option of the provider,.
Amendment 6 ++
- Recital 22a (new)
(22a) Directive 2002/22/EC does not require providers to monitor information transmitted over their networks or to bring legal proceedings against their customers on grounds of such information, nor does it make providers liable for that information. Responsibility for punitive action or criminal prosecution remains with the relevant law enforcement authorities.
Restates the mere-conduct principle, which is at the basis of network neutrality.
- Voting recommendation: for.
No Amendment to Recital 23 --
This recital still reads as follow:
(23) In the absence of relevant rules of Community law, content, applications and services are deemed lawful or harmful in accordance with national substantive and procedural law. It is a task for the Member States, not for providers of electronic communications networks or services, to decide, in accordance with due process, whether content, applications or services are lawful or harmful. The Framework Directive and the Specific Directives are without prejudice to Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (Directive on electronic commerce)(OJ L 178, 17.7.2000, p. 1.), which, inter alia, contains a "mere conduit" rule for intermediary service providers, as defined therein.
The reference to lawful content is known to be used as a ground for "three-strikes" approach (graduated response) and has nothing to do in the Universal Service Directive, since the rapporteur said that copyright enforcement has nothing to do in this directive.
- Voting recommendation: propose an amendment deleting Recital 23.
Amendment 9
- Recital 26
(26) A competitive market should ensure that users receive the quality of service they require, but in particular cases it may be necessary to ensure that public communications networks attain minimum quality levels so as to prevent degradation of service, the blocking of access and the slowing of traffic over networks. Since inconsistent remedies will significantly impair the achievement of the internal market, the Commission should assess any requirements set by national regulatory authorities for possible regulatory intervention across the Community and, if necessary, adopt technical implementing measures in order to achieve consistent application throughout the Community.
Mixes Recital 26 of the Council's Common Position and recital 14d of the European Parliament's first reading. It doesn't seem dangerous with regard to network discrimination. A similar amendment from AT&T was proposing to allow unjustified degradation of service, usage restrictions and/or limitations of traffic, which would have been very dangerous.
- Voting recommendation: none.
Amendment 17 --
- Recital 39
(39) In order to overcome existing shortcomings in terms of consumer consultation and to appropriately address the interests of citizens, Member States should put in place an appropriate consultation mechanism. Such a mechanism could take the form of a body which would, independently from the national regulatory authority and from service providers, carry out research on consumer-related issues such as consumer behaviour and mechanisms for changing suppliers, and which would operate in a transparent manner and contribute to the existing mechanisms for stakeholders' consultations. Furthermore, a mechanism could be established for the purpose of enabling appropriate cooperation on issues relating to the promotion of lawful content. Any cooperation procedures agreed pursuant to such a mechanism should, however, not allow for the systematic surveillance of internet usage. Where there is a need to address the facilitation of the access to and use of electronic communications services and terminal equipment for disabled users, and without prejudice to Directive 1999/5/EC and in particular the disability requirements pursuant to Article 3(3)(f) thereof, the Commission should be empowered to adopt implementing measures.
This amendment doesn't change anything in the important provisions of this recital, namely Furthermore, a mechanism could be established for the purpose of enabling appropriate cooperation on issues relating to the promotion of lawful content. Any cooperation procedures agreed pursuant to such a mechanism should, however, not allow for the systematic surveillance of internet usage. The cooperation to promote lawful content is known to be used as a ground for "three-strikes" approach (graduated response) and has nothing to do in the Universal Service Directive, since the rapporteur said that copyright enforcement has nothing to do in this directive.
- Voting recommendation: propose an amendment deleting the two sentences Furthermore, a mechanism could be established for the purpose of enabling appropriate cooperation on issues relating to the promotion of lawful content. Any cooperation procedures agreed pursuant to such a mechanism should, however, not allow for the systematic surveillance of internet usage.
Amendment 18 +
- Recital 39a (new)
(39a) The procedure for out-of-court dispute resolution should be strengthened by ensuring that independent dispute resolution bodies are used, and that the procedure conforms at least to the minimum principles established by Commission Recommendation 98/257/EC of 30 March 1998 on the principles applicable to the bodies responsible for out-of-court settlement of consumer disputes (OJ L 115, 17.4.1998, p. 31.). Member States may either use existing dispute resolution bodies for that purpose, provided those bodies meet the applicable requirements, or establish new bodies. Furthermore, when dealing with out-of-court procedures, Member States should make every effort to ensure that those procedures are transparent and exercised impartially, in particular in view of Recommendation 98/257/EC, so that the effectiveness, fairness and legality of the procedure is safeguarded.
Principles established by Commission Recommendation 98/257/EC adds some safeguards for out-of-court settlement of consumer disputes, while it does not prevent a national administrative authority to enforce a "three-strikes" approach (graduated response) as currently drafted by French government.
- Voting recommendation: for.
Amendment 19 +
- Recital 39b (new)
(39b)Directive 2002/58/EC provides for the harmonisation of the provisions of the Member States required to ensure an equivalent level of protection of fundamental rights and freedoms, and in particular the right to privacy and the right to confidentiality, with respect to the processing of personal data in the electronic communications sector, and to ensure the free movement of such data and of electronic communications equipment and services in the Community. Where measures aiming to ensure that terminal equipment is constructed so as to safeguard the protection of personal data and privacy are adopted pursuant to Directive 1999/5/EC or Council Decision 87/95/EEC, such measures should respect the principle of technology neutrality.
Restates the principle of network neutrality.
- Voting recommendation: for.
Amendment 21
- Recital 39d
(39d) Internet Protocol (IP) addresses are essential to the functioning of the internet. They identify network participating devices, such as computers or mobile smart devices according to an assigned, although not necessarily exclusive, IP number also known as IP address. Given the variety of scenarios in which IP addresses are used, and the related technologies which are rapidly evolving, questions have arisen about the use of such addresses as personal data in certain circumstances. The Commission should therefore present related proposals as appropriate, on the basis of a study on IP addresses and their various uses.
This amendment restores, in a slightly modified version, Recital 27a adopted by European Parliament in its first reading. But this recital was presented by EDPS as an alternative to the deletion of a dangerous recital previously adopted in IMCO. Therefore, it can be adopted or rejected.
- Voting recommendation: none.
Amendment 43
- Article 1 – point 13 amending Directive 2002/22/EC Article 20 – paragraph 1 – point b
(b) the services provided, including in particular: - whether or not access to emergency services and caller location information are being provided and/or any limitations for provision of emergency services under Article 26; - information on any limitations imposed by the undertaking, in accordance with national law, on a subscriber's ability to access, use or distribute information or run applications or services, - the minimum service quality levels offered, namely the time for the initial connection and, where appropriate, other quality of service parameters, as defined by the national regulatory authorities, - the types of maintenance service offered and customer support services provided, as well as the methods to contact these services, and, - any restrictions imposed by the provider on the use of terminal equipment supplied
This article, as adopted by European Parliament in its first reading, raised concerns because of the second point which talked about restictions to access to lawful content. The Council replaced this by network management policies, which is also subject to concerns with regard to network neutrality. The wording of amendment 43 is more appropriate, and that's why this amendment is scored with +. But it still needs some boundaries to limitations on a subscriber's ability to access, use or distribute information or run applications or services.
- Voting recommendation: for if amended to say non-discriminatory limitation and add a recital: A limitation on a subscriber's ability to access, use or distribute information or run applications or services is deemed non-discriminatory when it is ordered by a decision from the judicial authority, or when users can deactivate it at no extra cost, or when it is a temporary, short term, response to malicious activity or unpredictable occurrence threatening the integrity or security of the network, or end-user security. Such limitation must always be carried out without giving priority to selected users or content/service providers.
Amendment 49
- Article 1 – point 13 amending Directive 2002/22/EC Article 21 – paragraph 3
3. Member States shall ensure that national regulatory authorities are able to oblige undertakings providing connection to a public electronic communications network and/or electronic communications services to inter alia: (a) provide applicable tariff information to subscribers regarding any number or service subject to particular pricing conditions; with respect to individual categories of services, national regulatory authorities may require such information to be provided immediately prior to connecting the call (b) regularly remind subscribers of any lack of reliable access to emergency services or caller location information in the service they have subscribed to; (c) inform subscribers of any change to any limitations imposed by the undertaking, in accordance with national law, on a subscriber's ability to access, use or distribute information or run applications or services, (d) inform subscribers of their right to determine whether or not to include their personal data in a directory and of the types of data concerned in accordance with Article 12 of Directive 2002/58/EC; and (e) regularly inform disabled subscribers of details of products and services designed for them. If deemed appropriate, national regulatory authorities may promote self- or co-regulatory measures prior to imposing any obligation.
The same remarks apply for point (c) as for amendment 43.
- Voting recommendation: for if amended to say non-discriminatory limitation and add a paragraph 22.4: A limitation on a subscriber's ability to access, use or distribute information or run applications or services is deemed non-discriminatory when it is ordered by a decision from the judicial authority, or when users can deactivate it at no extra cost, or when it is a temporary, short term, response to malicious activity or unpredictable occurrence threatening the integrity or security of the network, or end-user security. Such limitation must always be carried out without giving priority to selected users or content/service providers.
Amendment 53
- Article 1 – point 13 amending Directive 2002/22/EC Article 22 – paragraph 3 − subparagraph 1 a (new)
The Commission may, having examined such requirements and consulted the Body of European Regulators in Telecom (BERT), adopt technical implementing measures in that regard if it considers that the requirements may create a barrier to the internal market. Those measures designed to amend non-essential elements of this Directive by supplementing it shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 37(2).
This amendment restores partially Article 22 − paragraph 3 as adopted by European Parliament in its first reading, which has raised some concerns about the imposition of DRM. But the dangerous part of this paragraph has already be softened by the Council, replacing the reference to guidelines to enable the access or distribution of lawful content or applications by setting minimum quality of service requirements. Therefore, this amendment can be adopted or rejected.
- Voting recommendation: none.
Amendment 72 +++
- Article 1 – point 21 a (new) amending Directive 2002/22/EC Article 32 a (new)
Article 32a Access to content, services and applications Member States shall ensure that any restrictions on the rights of users to access content, services and applications, if such restrictions are necessary, are implemented by appropriate measures, in accordance with the principles of proportionality, effectiveness and dissuasiveness. Those measures shall not have the effect of hindering the development of the information society, in compliance with Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (Directive on electronic commerce)*, and shall not conflict with the fundamental rights of citizens, including the right to privacy and the right to due process.
This amendment restores amendment 166 adopted by European Parliament in its first reading, which provides safeguards against net discrimination.
- Voting recommendation: for.
No Amendment to Article 33 − Paragraph 3 of Universal Service Directive ---
This article still reads as follow:
3. Without prejudice to national rules in conformity with Community law promoting cultural and media policy objectives, such as cultural and linguistic diversity and media pluralism, national regulatory authorities and other relevant authorities may promote cooperation between undertakings providing electronic communications networks and/or services and sectors interested in the promotion of lawful content in electronic communication networks and services. That cooperation may also include coordination of the public interest information to be provided pursuant to Article 21(4)(a) and Article 20(1).
The cooperation between FAI and sectors interested in the promotion of lawful content is known to be used as a ground for "three-strikes" approach (graduated response) and has nothing to do in the Universal Service Directive, since the rapporteur said that copyright enforcement has nothing to do in this directive.
- Voting recommendation: propose an amendment deleting Article 33 − Paragraph 3 of Universal Service Directive.
Amendment 74 +
- Article 1 – point 23 amending Directive 2002/22/EC Article 34 – paragraph 1
1. Member States shall ensure that transparent, non-discriminatory, simple and inexpensive out-of-court procedures are available for dealing with unresolved disputes between consumers and undertakings providing electronic communications networks and/or services arising under this Directive and relating to the contractual conditions and/or performance of contracts concerning the supply of those networks and/or services. Member States shall adopt measures to ensure that such procedures enable disputes to be settled fairly and promptly and may, where warranted, adopt a system of reimbursement and/or compensation. Such procedures shall enable disputes to be settled impartially and shall not deprive the consumer of the legal protection afforded by the national law. Member States may extend these obligations to cover disputes involving other end-users. Member States shall ensure that the bodies in charge of dealing with such disputes, which can be single points of contact, provide relevant information for statistical purposes to the Commission and the authorities. With specific regard to the interaction of audiovisual and electronic communications, Member States shall encourage reliable out-of-court procedures.
This amendment adds some safeguards for customer in case of out-of-court procedures.
- Voting recommendation: for.
Amendment 85 --
- Article 2 – point 6 amending Directive 2002/58/EC Article 6
(a) paragraph 1 shall be replaced by the following: 1. Traffic data relating to subscribers and users processed and stored by the provider of a public communications network or publicly available electronic communications service must be erased or made anonymous when it is no longer needed for the purpose of the transmission of a communication without prejudice to paragraphs 2, 2a, 3 and 5 of this Article and Article 15(1). (aa) The following paragraph 1 a shall be inserted: 1a. Traffic data necessary for the purposes of subscriber billing and interconnection payments may be processed. Such processing is permissible only up to the end of the period during which the bill may lawfully be challenged or payment pursued. (ab) The following paragraph 1 b shall be inserted: 1b. Without prejudice to compliance with provisions other than Article 7 of Directive 95/46/EC and Article 5 of this Directive, traffic data may be processed in the legitimate interest of the data controller for the purpose of implementing technical measures to ensure the network and information security, as defined by Article 4(c) of Regulation (EC) No 460/2004 of the European Parliament and of the Council of 10 March 2004 establishing the European Network and Information Security Agency (OJ L 77, 13.3.2004, p. 1.), of a public electronic communication service, a public electronic communications network, an information society service or related terminal and electronic communication equipment, except where such interest is overridden by those of the fundamental rights and freedoms of the data subject. Such processing shall be restricted to that which is strictly necessary for the purposes of such security activity. (b) paragraph 3 shall be replaced by the following: 3. For the purpose of marketing electronic communications services or for the provision of value added services, the provider of a publicly available electronic communications service may process the data referred to in paragraph 1 to the extent and for the duration necessary for such services or marketing, if the subscriber or user to whom the data relate has given his or her prior consent. Users or subscribers shall be given the possibility to withdraw their consent for the processing of traffic data at any time. 4. The service provider must inform the subscriber or user of the types of traffic data which are processed and of the duration of such processing for the purposes mentioned in paragraph 2 and 2a and, prior to obtaining consent, for the purposes mentioned in paragraph 3. 5. Processing of traffic data, in accordance with paragraphs 1, 2, 2a, 3 and 4, must be restricted to persons acting under the authority of providers of the public communications networks and publicly available electronic communications services handling billing or traffic management, customer enquiries, fraud detection, other network and information security, marketing electronic communications services or providing a value added service, and must be restricted to what is necessary for the purposes of such activities. 6. Paragraphs 1, 2, 2a, 3 and 5 shall apply without prejudice to the possibility for competent bodies to be informed of traffic data in conformity with applicable legislation with a view to settling disputes, in particular interconnection or billing disputes.
This amendment restores the article as adopted by the European Parliament in its first reading, and specially AM 181 which introduced Article 6.6a, renumbered 6.1b in the current amendment.
Both this amendment and the Council common position would allow the telecommunications industry to collect a potentially unlimited amount of sensitive, confidential communications data including our telephone and e-mail contacts, the geographic position of our mobile phones and the websites we visit on the Internet. Apart from the creation of vast data pools that could go far beyond what is being collected under the directive on data retention, the proposal would also permit the disclosure of traffic data to other companies, government authorities and individuals.
In his opinion of 9 January 2009, the EDPS "recommends to reject this Article". He confirms that "Article 6.6(a) is unnecessary and subject to risk of abuse" and goes on to say: "Any existing or future article is unlikely to remove the obvious risks of an overly broad application of the exception for reasons other than purely security related or by entities that should not be able to benefit from the exception. [...] Taking into account on the one hand the risks that Article 6.6(a) poses to the fundamental right to data protection and privacy of individuals, and on the other hand the fact that, as explained in this Opinion, from a legal point of view, this Article is unnecessary, the EDPS has come to the conclusion that the best outcome would be for the proposed Article 6.6(a) to be deleted altogether."
With amendment 85,
- retention would not be limited to specific occasions and would thus take place permanently,
- no maximum retention period would be specified, so data would potentially be stored forever,
- the disclosure of our communications data to third parties would be legalized ("may be processed"),
- data retained for security purposes could later be used for any other purpose, including disclosure to government authorities or IPR holders (no purpose limitation).
MEPs should heed the advice given by the European Data Protection Supervisor (EDPS) and
- work towards the tabling of an amendment (e.g. group amendment in plenary) to delete article 2 point 6 of the Council common position altogether,
- in the meantime, vote for amendment 150 tabled by Ms Svensson in IMCO (vote scheduled for 31 March 2009), and
- work towards the withdrawal or the rejection of amendment 85 tabled by the rapporteur in IMCO.
For details see joint press release "EU proposal puts confidential communications data at risk" and background paper.
- Voting recommendation: reject this amendment and vote for amendment 150 instead.
Amendment 103
- Annex I - Part B – point b b (new)
(bb) Protection software Member States shall ensure that national regulatory authorities are able to require operators to make available free of charge to their subscribers reliable, easy-to-use and freely and fully configurable protection and/or filtering software to prevent access by children or vulnerable persons to content unsuitable for them. Any traffic monitoring data that this software may collect is for the use of the subscriber only.
This amendment restores a provision adopted by European Parliament in its first reading. But this provision was adopted as an alternative to the deletion of a dangerous provision previously adopted in IMCO. Therefore, it can be adopted or rejected.
- Voting recommendation: none.
Amendment 150 +++
- Article 2 – point 6 amending Directive 2002/58/EC Article 6
7. Traffic data may be collected, stored and used in specific cases to the extent strictly necessary to ensure network and information security, as defined by Article 4(c) of Regulation (EC) No 460/2004 of the European Parliament and of the Council of 10 March 2004 establishing the European Network and Information Security Agency. Traffic data stored pursuant to this paragraph must not be used for any other purpose and must be erased or made anonymous no later than seven days after its collection.
The Council common position on this point would allow the telecommunications industry to collect a potentially unlimited amount of sensitive, confidential communications data including our telephone and e-mail contacts, the geographic position of our mobile phones and the websites we visit on the Internet. Apart from the creation of vast data pools that could go far beyond what is being collected under the directive on data retention, the proposal would also permit the disclosure of traffic data to other companies, government authorities and individuals.
In his opinion of 9 January 2009, the EDPS "recommends to reject this Article". He confirms that "Article 6.6(a) is unnecessary and subject to risk of abuse" and goes on to say: "Any existing or future article is unlikely to remove the obvious risks of an overly broad application of the exception for reasons other than purely security related or by entities that should not be able to benefit from the exception. [...] Taking into account on the one hand the risks that Article 6.6(a) poses to the fundamental right to data protection and privacy of individuals, and on the other hand the fact that, as explained in this Opinion, from a legal point of view, this Article is unnecessary, the EDPS has come to the conclusion that the best outcome would be for the proposed Article 6.6(a) to be deleted altogether."
With amendment 150,
- retention is limited to "specific cases" and my thus not take place permanently,
- maximum retention period of seven days is specified, so data may not be stored forever,
- the disclosure of data to third parties is not covered ("may be collected, stored and used"),
- data retained for security purposes cannot later be used for other purposes such as disclosure to government authorities (purpose limitation included).
However, even this wording has major downsides:
- there would be no specification of who may process data, not limited to telecommunications providers,
- unclear purpose of processing, purpose not specified to be the protection of the provider's own systems,
- user interest could not outweigh provider interest,
- member states would not be allowed to protect privacy better.
So MEPs should
- work towards the tabling of an amendment (e.g. group amendment in plenary) to delete article 2 point 6 of the Council common position altogether,
- in the meantime, vote for amendment 150 tabled by Ms Svensson in IMCO (vote scheduled for 31 March 2009), and
- work towards the withdrawal or the rejection of amendment 85 tabled by the rapporteur in IMCO.
For details see joint press release "EU proposal puts confidential communications data at risk" and background paper.
- Voting recommendation: vote for this amendment and reject amendment 85.
Amendment 109 +++
- Recital 22 a (new)
(22a) Traffic management policies are the rules and guidelines which a network operator has put in place to handle the flow of traffic on the network (i.e. bandwidth management), but they may additionally utilise capabilities installed by the operator to prioritise, block and filter traffic according to pre-set criteria. These policies must be able to be justified by a valid technical reasons such as temporary short-term remedies put in place so as to smooth traffic in cases of acute network congestion or in response to malicious activity threatening network security or end-user security. Traffic management policies should be neutral in respect of content and applications and must not result in the user not being able to access content, services and applications. Operators should in all cases respect fundamental rights and freedoms of users.
More or less our definition of acceptable network management policies.
- Voting recommendation: for
Amendment 111 +++
- Recital 22 b (new)
(22b) Internet users are entitled to an Internet connection to send and receive content of their own choice, use services and applications of their own choice, and connect hardware and use software of their own choice that does not harm the network. Internet users are entitled to a connection free from discrimination based on type of application, service or content, or based on sender or receiver address.
More or less our definition of net neutrality.
- Voting recommendation: for
Amendment 115 +++
- Recital 26
(26) A competitive market should ensure that users enjoy the quality of service they require, but in particular cases it may be necessary to ensure that public communications networks attain minimum quality levels so as to prevent degradation of service, the blocking of access and the slowing of traffic over networks. Prioritisation or limitation of traffic must be able to be justified by a valid technical reason, such as temporary short-term remedies put in place so as to smooth traffic in cases of
acute network congestion or in response to malicious activity
threatening network security or end-user security, and must not result in the user not being able to access content, services and applications. A minimum quality of service should ensure that users are able to access all content, services and applications of their choice without being hindered, limited or blocked by the traffic management policies of the network operator. Since inconsistent remedies will significantly impair the achievement of the internal market, the Commission should assess any requirements set by national regulatory authorities for possible regulatory intervention across the Community and, if necessary, adopt technical implementing measures in order to achieve consistent application throughout the Community.
More or less our definition of minimum quality of service.
- Voting recommendation: for
Amendment 116 ---
- Recital 26
(26) A competitive market should also ensure that users are able to have the quality of service they require, but in particular cases it may be necessary to ensure that public communications networks attain minimum quality levels so as to address unjustified degradation of service, usage limitations and slowing of traffic.
AT&T amendment.
- Voting recommendation: reject
Amendment 117 == Amendment 118 ---
- Recital 26 a (new)
(26a) Directive 2002/22/EC is without prejudice to reasonable network management by providers, for example to address congestion and capacity constraints, to ensure the security of the network and of users and to enable reliable performance of individual services. These practices should not hinder the competitive development of the information society and should respect the requirements set out in articles 20 and 21 of Directive 2002/22/EC.
AT&T amendment.
- Voting recommendation: reject
Amendment 135 +++
- Article 1 – point 13 amending Directive 2002/22/EC Article 22 – paragraph 1
1. Member States shall ensure that national regulatory authorities are, after taking account of the views of interested parties, able to require undertakings that provide publicly available electronic communications networks and/or services to publish equivalent, adequate and up-todate information for end-users on the quality of their services and measures taken to ensure comparable access for disabled end-users and to disclose traffic management policies. That information shall, on request, be supplied to the national regulatory authority in advance of its publication. Member States shall ensure that national regulatory authorities are able to take appropriate measures in cases where operators fail to disclose their traffic management policies or where the traffic management policy does not respect the rights of users to access the content, applications and services of their choice. National regulatory authorities shall additionally ensure that there is a facility in place by which users can monitor and identify any problems created by traffic management policies in cases where disputes may arise.
allows to take measures against net discrimination
- Voting recommendation: for