EU-Wide Three Strikes Law Back on Track?

Internet access as a right. It’s part of a telecoms package that is said to have blocked three strikes legislation and even a “graduated response”. Many even pointed to this part of the telecoms package to proclaim HADOPI as illegal. Now, there is a renewed effort to neuter this particular amendment and pave the way to either three strikes law or other means of disconnecting alleged copyright infringers from the internet.

Note: This is an article I wrote that was published elsewhere first. It has been republished here for archival purposes

The internet has become a major cultural centre. People can find literature, musical works and personal videos online. It’s also becoming increasingly important for carrying out personal business such as obtaining passports. For these and a number of other reasons, there was an amendment added to the telecoms package to recognize internet access as a right. Also known as amendment 138, it effectively blocks draconian laws such as cutting off internet access based on three accusations of copyright infringement.

Back in May, the copyright industry as well as French representatives put immense pressure on the European Union to implement a “graduated response” toward a three strikes law. This was a very heated debate which came to an end when the European Union shut the door on the three strikes legislation back in May after, ironically enough, three failed attempts to implement the law.

The seemingly final move was seen as a major victory for user rights. In the end, Europe rejected the idea that users could be disconnected from the internet based on accusations of copyright infringement given that so much is dependent on internet access in the first place.

Unfortunately, the copyright industry doesn’t take “no” for an answer.

No doubt, after a huge amount of lobbying, it seems the industry is making headway into reversing the European Unions final decision and pressuring Europe to neuter amendment 138.

Commissioner Viviane Reding, according to a report in IPTegrity, was in a meeting with rights holders and internet providers on July 6th to discuss measures taken against copyright infringement.

Right before MEP’s headed off for the Summer, DG Information Society issued its position on amendment 138. In it was talks about a “compromise” on amendment 138 which would implement “measures regarding end-users’ access to or use of services and applications through electronic communications networks”

From the report:

The so-called “compromise” is positioned in Article 1 of the Framework directive, addressed to Member States. It should be read in conjunction with Amendment 1.2a of the Universal Services and Users Rights directive, which will permit broadband providers to block impose “conditions limiting access to and/or use of services and applications”. In light of T-Mobile blocking Skype, BT throttling peer-to-peer services, and Karoo, a small UK ISP cutting off users, it should now be abundantly clear what this text means.

IPtegrity also made a sort of “before and after” comparison of the compromise:

Be for (article 8.h):

(h) 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 where the ruling may be subsequent.

After (with paragraph 3a inserted):

3a. Measures taken regarding end-users’ access to or use of services and applications through electronic communications networks shall respect the fundamental rights and freedoms of natural persons, including in relation to privacy, freedom of expression and access to information and the right to a judgment by an independent and impartial tribunal established by law and acting in respect of due process in accordance with Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms.

While the text seems to oddly just say that that users have a right to a judicial process, it effectively means that the three strikes law would be alive and well as the legislation would be distorted possibly into a new back door “three strikes” law (either that or other means of disconnecting users from the internet). Compromise? Few people who are familiar with would even buy that term.

There’s no word from the Swedish pirate party yet on this latest development, but there’s little doubt that this latest move would draw quick condemnation from groups such as the Pirate Party.

[Via Open Rights Group]

Drew Wilson on Twitter: @icecube85 and Google+.

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