EU Telecoms Package review: a UK perspective on the abandonment of Amendment 138

11 January 2010

Carolyn Burbridge, Rachel Irwin

Background

New European legislation has recently been approved, which will introduce significant changes to telecoms law. It is expected to be transposed into Member State legislation by about June 2011. The purpose of the Telecoms Reform Package is to streamline European telecoms regulation. In particular, it is hoped that the package will improve competition, facilitate high-speed broadband internet connections and improve consumer protection.

The European Parliament endorsed the package by a large majority in May 2009. However, one area of proposed reform has created such controversy that it has prevented the package from being taken forward. It is the question of the degree to which access to the internet should be protected by EU law, and the procedural and judicial safeguards which should be given to internet users.

Early drafts of the reform package did not contain provisions for the protection of web users’ rights. But during 2008 and 2009, a controversial bill went through the French Parliament. It contained a ‘three strikes’ rule, which provided that illegal file-sharers would receive a warning by e-mail, then by letter, and then would have their connection cut off for a year if they offended for a third time. Users would have a right to appeal decisions to disconnect them.

Amendment 138

In May 2008, the European Parliament adopted Amendment 138 to the EU Telecoms Package. The amendment required national regulatory authorities to apply 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. The amendment contained an exception for situations where public security is threatened (in which cases a judicial authority ruling still had to be obtained after the event).

The purpose of the amendment was to enshrine citizens’ fundamental rights, including the rights to respect for private life and the right to freedom of expression and information, in the legislation. The amendment was seen as a protest against the severe French bill, and an attempt to prevent Member State governments from widespread use of ‘three-strike’ laws.

Many EU national governments favoured a system which would allow police or regulatory bodies to cut off users’ internet access immediately, and were unhappy with the proposals to make internet access a ‘fundamental right’.

Civil liberties groups welcomed the amendment, and its requirement that a government must prove wrongdoing in court before cutting off an individual’s internet access.

Abandonment of Amendment 138

On 5 November 2009, members of the European Parliament and representatives from each EU Member State agreed to abandon Amendment 138.

A new provision, which guarantees the fundamental rights of internet users, has replaced Amendment 138. It provides that internet access can only be restricted following a “prior, fair and impartial procedure”, in which the “right to be heard” is guaranteed. It is not yet clear what will constitute a “fair and impartial procedure”. This will probably depend on how Member States choose to implement the package.

Internet access may still be suspended immediately in duly substantiated cases of urgency, provided that appropriate conditions and procedural arrangements are in place.

It seems that ‘three-strikes’ laws may be ruled out under the suggested new provisions. The EU Telecoms Commissioner, Viviane Reding, has stated that “’Three-strikes-laws’, which could cut off Internet access without a prior fair and impartial procedure… will certainly not become part of European law”. She has hailed the new internet freedom provision as “a great victory for the rights and freedoms of European citizens”.

Future of the Telecoms Package

The European Council approved the package on 20 November, and the European Parliament voted for the reforms on 24 November. Part of the package entered into force by publication of an agreed joint text in the EU’s Official Journal on 18 December 2009 and the remainder is expected to enter into force shortly. A European Body of Telecoms Regulators (BEREC) will be established in the spring of 2010. The reform package is expected to be transposed into Member State legislation by about June 2011.

In the UK, the Department for Business, Innovation and Skills welcomed the new drafting. A Digital Economy Bill was published on 18 November 2009, which we report separately.  It contains provisions relating to online copyright infringement, which are presumably intended to comply with the telecoms package.