Topic: EU adopts "Internet freedom" provision on Internet cut-offs

[Samker]

A new Internet freedom provision means that European countries can still adopt "three-strikes" rules targeting P2P users, but they must presume innocence, guard privacy, and allow for judicial appeal.

For weeks, the major governing institutions of the European Union have been locked in a battle over three-strikes laws, Internet disconnections, and the appropriate role of judges in the process. Just after midnight last night, the deadlock was broken and all parties agreed to a new "Internet freedom provision" that reinforces the presumption of innocence, the right to privacy, and the right to judicial review under any Internet sanctions.

The Internet freedom provision was the final sticking point for the massive Telecoms Package, a body of reform laws that will give national regulators greater authority to pass network neutrality rules, will allow mobile and landline telephone users to change operators in a single day while keeping their old numbers, and requires the mandatory notification of consumers when their personal data has been breached.

Last year, the European Parliament made clear that it wanted a tough amendment to the entire package that would require judicial oversight of any Internet disconnections targeting online copyright infringers. That provision, which was eventually codified as amendment 138, posts a clear challenge to France's HADOPI law, which set up a non-judicial administrative body to issue Internet disconnections and maintain a national Internet blacklist.

France therefore used its clout in the Council of Ministers, which represents national governments and must agree to legislation emanating from the European Parliament, to ensure that amendment 138 would not pass in its current form. After France's top constitutional body ruled that the original HADOPI wrongly had a presumption of guilt and featured sanctions only properly issued by a judge, opposition softened.

The new agreement has been signed off on by the Council of Ministers, the negotiators from the European Parliament, and the European Commission, and looks to go into effect next year.

The new Internet freedom provision still allows "graduated response" laws and even Internet disconnections, but it does set down a baseline that all countries must follow. According to the new provision, Internet sanctions may "only by imposed if they are appropriate, proportionate, and necessary within a democratic society." In addition, they can 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… The right to an effective and timely judicial review shall be guaranteed."

Note what's different here from the original amendment 138; the right to judicial review is guaranteed on appeal, but the original sanction can be issued by a non-judicial authority like HADOPI.

La Quadrature du Net, the French group campaigning most strenuously against three-strikes laws it, likes the new provision but still has problems with it. "The protection granted by the amendment only relates to measures taken by States, not private parties," it says. "Hence, restrictions imposed by operators at the request of right-holders do not fall under the scope of this provision.": http://www.laquadrature.net/wiki/Telecoms_Package_Amendment138_compromise_20091105

That's true, but it's also the way things work now. Check the fine print of your ISP contract; most allow the ISP to stop serving users for any reason. ISPs, not keen to disconnect their own customers, rarely do so.

(ArsTehnica)