Telecoms Package 2nd Reading ITRE IMCO Amendments : Différence entre versions

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(Amendment 150 +++)
(Added amendment 134)
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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.
 
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.
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===<font color="green">Amendment 134 +++</font>===
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* Article 1 – point 8 – point f a (new)
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* Directive 2002/21/EC
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* Article 8 – paragraph 4 – point fa (new)
 +
 +
(fa) in paragraph 4, point (fa) shall be inserted:
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“(fa) applying the principle that end-users should
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be able to access and distribute any content and
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use any applications and/or services of their
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choice;”
  
 
==COD/2007/0248 - Harbour report (universal service, ePrivacy)==
 
==COD/2007/0248 - Harbour report (universal service, ePrivacy)==

Version du 22 mars 2009 à 11:40

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.

COD/2007/0247 - Trautmann report (framework, access, authorisation)

http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//NONSGML+COMPARL+PE-420.223+01+DOC+PDF+V0//EN&language=EN

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)
  • 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;”

COD/2007/0248 - Harbour report (universal service, ePrivacy)

http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//NONSGML+COMPARL+PE-421.119+02+DOC+PDF+V0//EN&language=EN

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

  1. 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,
  2. in the meantime, vote for amendment 150 tabled by Ms Svensson in IMCO (vote scheduled for 31 March 2009), and
  3. 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

  1. 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,
  2. in the meantime, vote for amendment 150 tabled by Ms Svensson in IMCO (vote scheduled for 31 March 2009), and
  3. 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.