The Telecoms Package: A Missed Opportunity for Citizen's Rights

[Michel Bauwens]

La Quadrature du Net - For immediate release

Permanent link:
http://www.laquadrature.net/en/telecoms-package-a-missed-opportunit...


Telecoms Package: A Missed Opportunity for Citizen's Rights



*** Paris, November 24th, 2009 - There is no reason to celebrate the
general outcome of the Telecoms Package. The final text voted today is
far from satisfactory: while it includes some consumer protections, they
fall short of compensating for the various loopholes and threats to
fundamental rights contained in the rest of the text. ***

Despite the optimistic outlook[1] of the Commission on this major reform
of the European telecommunications sector, the harmful elements included
in the final text could represent a step backwards in many Member States
with regards to the defense of the fundamental right of access to
Internet. Contrary to the original "Amendment 138"[2], the so-called
Internet Freedom Provision[3] leaves the door open for restrictions of
Internet connections without a prior judicial decision.[4] Another
loophole in the provision is that it only relates to measures taken by
Member States and thereby fails to ban dangerous traffic management
practices, such as the filtering or prioritizing of content, services
and applications by Internet Service Providers (ISPs). The agreed
Telecoms Package thus allows for anti-competitive, anti-innovation and
liberty-killers discrimination coming from infrastructure owners, who
could shape information flows according to their own commercial interests.

Likewise, even though it is encouraging, the Commission's declaration on
Net neutrality[5] added to the Telecoms Package does not have any
normative effect. Whereas the United State is on the verge of mandating
Net neutrality to fixed and wireless ISPs, European lawmakers have
failed to enforce this fundamental principle. This is all the more
worrying considering the growing number of malpractices[6] on the part
of ISPs.

Grey areas in the text are left open to judicial interpretation, and
competition law will assuredly not suffice to fully guarantee citizens'
rights. Also, the lack of clarity of many provisions will require close
scrutiny in the process of transposition and application of this
important piece of legislation.

For these reasons, it is regrettable that the Parliament's uncritical
political consensus on the Telecoms Package, led by rapporteurs
Catherine Trautmann and Malcom Harbour, does not reflect the deep
concern of millions of Europeans for the protection of Internet freedoms.

"Whereas in France the Constitutional Council, the highest jurisdiction,
ruled recently that freedom of expression and communication implies
freedom to access the Internet[7], European lawmakers have not done
enough to protect the fundamental rights of citizens. Under the pressure
of Member States and special interests, the Parliament has undoubtedly
backed away from its initial strong stance in favor of an open, neutral
and competitive Internet. The European Union just missed a historical
opportunity to affirm the crucial importance of free access to the
Internet for the future of our societies, and was unable to resist the
will of national governments and corporations to be in position to take
control of the communicational infrastructure." concludes Jérémie
Zimmermann, spokesperson for the advocacy group La Quadrature du Net.



* Références *


1. See the Commission's press release regarding the adoption of the
Telecoms Package:
http://europa.eu/rapid/pressReleasesAction.do?reference=MEMO/09/513...

2. Amendment 138 provided that "no restriction may be imposed on the
fundamental rights and freedoms of end-users, without a prior ruling by
the judicial authorities. Read the full amendment and its evolutions:
http://www.laquadrature.net/en/an-evolution-of-amendment-138

3. See our analysis of this provision:
http://www.laquadrature.net/wiki/Telecoms_Package_Amendment138_comp...

4. Despite this weakness, it will however remain possible to challenge
any HADOPI-like law as non-compliant with the requirement of a prior
fair and impartial procesure and as failing to respect the rights to
privacy.

5. See the Commission's declaration on Net neutrality:
http://www.laquadrature.net/wiki/Commission_Declaration_on_Net_Neut...

6. See our press release on a recent announcement by Vodafone

7. Decision 2009-580 DC, available in english at
http://www.conseil-constitutionnel.fr/conseil-constitutionnel/franc......
point 12: '12. Article 11 of the Declaration of the Rights of Man and
the Citizen of 1789 proclaims : "The free communication of ideas and
opinions is one of the most precious rights of man. Every citizen may
thus speak, write and publish freely, except when such freedom is
misused in cases determined by Law". In the current state of the means
of communication and given the generalized development of public online
communication services and the importance of the latter for the
participation in democracy and the expression of ideas and opinions,
this right implies freedom to access such services.'