The European Parliament and European Council have agreed new wording for a contentious provision in the EU Telecoms Package; it seeks to ensure that Internet users' fundamental rights and freedoms must be respected by Member States. The agreement sees the resolution of a political stand-off between the European Parliament, which sought to protect consumer rights, and the European Council, which did not wish to prevent Member States from introducing new enforcement systems to prevent Peer to Peer (P2P) file-sharing. The result is a compromise that the UK Government will need to consider in their keenly awaited plans to tackle illicit P2P file-sharing.

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Telecoms Package Finalised

The 'Telecoms Package' is an umbrella term for the latest package of new EU legislation designed to update and harmonise telecoms regulation in the EU. It will impose new minimum standards on telecoms service providers in their dealings with customers, and provides new powers for the European Council to intervene where competition is being stifled by dominant players. It will also create a new body of European regulators to provide greater consistency and coordination in the national regulation of telecoms markets.

Now that the European Parliament and European Council have agreed to a revised text, the whole Telecoms Package should be approved at the next European Parliament Plenary session in late November. The package is expected then to enter into force by early 2010 and Member States are likely to be required to give effect to its provisions by May 2011.

Fundamental Freedoms and Access to the Internet

The Telecoms Package had been delayed by a controversial clause relating to the circumstances in which consumers' access to electronic communications systems may be restricted.

In September 2008, members of the European Parliament approved a new provision, known as amendment 138, which would have required telecoms regulators to apply the recognised 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 and ruling may be subsequent."

This provision sought to enshrine the established principle that any action restricting use of a network must be in accordance with fundamental rights and the requirements of due legal process, and that consumers should not be cut-off from the Internet without a ruling from a court of law.

In November 2008, the European Council (comprising national Government representatives) confirmed that it wanted to drop amendment 138 from the Telecoms Package.

In May 2009, the European Parliament pushed back. Despite having negotiated a compromise on various issues, EU parliamentary lawmakers rejected the text and overwhelmingly restated their support for an amendment underlining that Internet access may not be restricted "without prior ruling by the judicial authorities". The European Parliament and the Council then entered a conciliation procedure to negotiate a solution.

On 4 November 2009 the European Parliament and European Council agreed on a new form of wording to be inserted into the new Framework Directive (part of the Telecoms Package) reproduced in full below:

"Measures taken by Member States 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, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and general principles of Community law.

Any of these measures regarding end-users' access to or use of services and applications through electronic communications networks liable to restrict those fundamental rights or freedoms may only be imposed if they are appropriate, proportionate and necessary within a democratic society, and their implementation shall be subject to adequate procedural safeguards in conformity with the European Convention for the Protection of Human Rights and Fundamental Freedoms and general principles of Community law, including effective judicial review and due process. Accordingly, these measures may only be taken with due respect for the principle of presumption of innocence and the right to privacy. A prior fair and impartial procedure shall be guaranteed, including the right to be heard of the person or persons concerned, subject to the need for appropriate conditions and procedural arrangements in duly substantiated cases of urgency in conformity with the European Convention for the Protection of Human Rights and Fundamental Freedoms. The right to an effective and timely judicial review shall be guaranteed."

Legally and politically, this provision is the culmination of a hard fought battle between the lobbying powers of rights holders one the one hand, and Internet Service Providers (ISPs) and consumer groups on the other. The new wording reads like a compromise and it will be interesting to see how it is applied (and stands up to challenge) in practice.

Measures to be taken in the UK to prevent P2P File-Sharing

In the UK the Government recently consulted on legal measures to reduce P2P file-sharing. Half-way through the consultation period, the Department of Business Innovation and Skills released a second Government statement revising its earlier consultation proposals and explaining that the Government now wants the Secretary of State (currently Lord Mandelson) to have sole responsibility for deciding whether or not to require ISPs to take technical measures against consumers (including cutting users off from the Internet).

The Government's response to the consultation is eagerly awaited and is due to be published soon. Lord Mandelson has been quoted in the press recently stating that he wishes to implement plans that will see file-sharers being sent warning letters, and if they do not cease file-sharing, being cut off from the Internet.

Many believe only a court of law should judge when users may be cut off from the Internet. One major ISP TalkTalk, believes that the Government's plans will require ISPs to cut off users at the behest of rights holders, without any independent or impartial tribunal considering the evidence. Although the Government has never explicitly stated this, it would certainly be consistent with the consultation document, which made no reference to an independent or impartial process for identifying serious infringers, and with Lord Mandelson's view that people should be given a 'proper route to appeal'. All of this seems to imply that Government will seek to require ISPs to cut users off without prior due legal process. Consumer groups will be concerned, as previous steps taken to prevent P2P file-sharing have resulted in numerous innocent people being wrongly targeted, and such measures would be contrary to the principle of 'innocent until proven guilty' referred to in the compromise wording.

It seems highly unlikely that a procedure that specifies that customers may be cut-off from the Internet at the request of rights holders, without any evidence being reviewed by a court or an independent and impartial tribunal, would comply with the new compromise wording in the Telecoms Package nor would it easily constitute a justified exception to the right to a fair trial enshrined in the European Convention for the Protection of Human Rights.

A Waiting Game

The Government's plans, when published, will be subject to intense scrutiny amid concerns that they may be illegal. The results of the Government's official consultation are due to be published soon, and it will be interesting to see the extent to which any new proposals will have been modified to have due regard to the provisions of the proposed Telecoms Package.

This article was written for Law-Now, CMS Cameron McKenna's free online information service. To register for Law-Now, please go to www.law-now.com/law-now/mondaq

Law-Now information is for general purposes and guidance only. The information and opinions expressed in all Law-Now articles are not necessarily comprehensive and do not purport to give professional or legal advice. All Law-Now information relates to circumstances prevailing at the date of its original publication and may not have been updated to reflect subsequent developments.

The original publication date for this article was 11/11/2009.