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Europe Supports Ambiguous Three-Strikes Style ISP Disconnection Policy

Posted: 05th Nov, 2009 By: MarkJ
The European Parliament (EP) and Council have finally reached an agreement on the "Telecoms Package". Critically it includes some small changes to amendment 138 that MIGHT make it more difficult for UK broadband ISPs to be forced into disconnecting their customers (following several initial warnings); specifically those suspected of repeated involvement with illegal file sharing.

A change to amendment 138 caused uproar last month when some undemocratic political manoeuvrings within the EP resulted in a key phrase, which protected a citizens' right to Internet access by requiring a prior judicial ruling before disconnection, being stealthily removed (here). Now some of that protection has returned, albeit still lacking the original reference to clear judicial protection.

Amendment 138 November 5th Text

Any of these measures regarding end-users' access to or use of service 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 with general principles of Community law, including effective judicial protection 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 European Convention for the Protection of Human Rights and Fundamental Freedoms. The right to an effective and timely judicial review shall be guaranteed.

There is clearly a lot more verbal wording to help protect individuals, though the language is deeply ambiguous. We can still see nothing concrete that would stop a country like the UK, which appears to have supported the above text, simply setting up a type of kangaroo court to asses each case PRIOR to the user being cut-off.

Jérémie Zimmemrmann, co-founder of the citizen advocacy group La Quadrature du Net, said:

"Despite its lack of clarity and ambition, this text does provide legal ammunition to continue the fight against restrictions of Internet access. The agreed text does not meet the challenge of clearly preserving a fundamental right of access to the Net. Threats to Internet Freedom still loom, with the intense lobbying of the entertainment industries to push the ACTA treaty, which endangers Net neutrality and seeks to impose the liability of the technical intermediaries."

Some might be able to argue that the new text will require a court level procedure for any pre-disconnection appeals style process, though it is all very open to interpretation and others may just as easily argue the opposite. On the other hand neither a government nor an ISP can now cut a customer off from the Internet merely on the say so of a Rights Holder.

The result of all this is a mix of both political and legal confusion, it’s one of those documents that politicians write seemingly as a method to keep us all busy with speculating over just what it is supposed to mean. The answer to that question is nobody seems to know.
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