An evolution of “amendment 138”

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Here is a comparison chart of the different versions of “amendment 138” along the whole co-decision procedure.

Denomination Wording of the text Quick analysis and references

Original amendment 138 voted on Sept 24th 2008

, 8.4.g of the Framework directive, tabled by Bono (PSE, FR), Cohn-Bendit (Greens, FR) and Roithova (EPP, CZ)

 “applying 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, 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 where the ruling may be subsequent.”
  • + Ties Internet access to fundamental freedoms
  • + Extremely protective: no restriction without a prior ruling by a judge (includes restricitons imposed by States or private parties)
  • – May leave some addressable legal questionning, especially regarding the mention of “judicial” authorities. See a memo on how to improve it.

Second reading ITRE compromise rejected on April 21st 2009

 (New Recital replacing amendments 46 and 135)
Recognizing that the Internet is essential for the practical exercise of freedom of expression and access to information and education, any restriction imposed on the exercise of these fundamental rights must be subject to a decision by an independent and impartial tribunal established by law acting in respect of due process as defined in Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
  • + Does not specify the kind of measures that fall under the disposition. Broad scope.
  • – No mention of a “prior decision” by a competent judge before measures are implemented
  • It is a recital, not an enforceable article. No real normative power
  • ALLOWS FOR “THREE STRIKES” POLICIES IN EU and other anti-Net neutrality practices

    Second reading plenary “compromise” rejected on May 6th 2009

    		 Article 1.3.a of the Framework directive

    Measures taken 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, including in relation to privacy, freedom of expression and access to information and the right to a judgment by an independent and impartial tribunal established by law and acting in respect of due process in accordance with Article 6 of the Convention for the Protection of Human Rights and
    Fundamental Freedoms.

    With a corresponding recital (was adopted in second reading):

    Recital

    (3a) Recognising that the Internet is essential for education and for the practical exercise of freedom of expression and access to information, any restriction imposed on the exercise of these fundamental rights should be in accordance with the Convention for the Protection of Human Rights and Fundamental Freedoms. Concerning these issues, the Commission should start a wide public consultation.”
    • + Does not specify the kind of measures that fall under the disposition. Broad scope.
    • – No mention of a “prior decision” by a competent judge before measures are implemented
    • The seemingly strong protections are in the recital, not an enforceable article. No real normative power
    • ALLOWS FOR “THREE STRIKES” POLICIES IN EU and other anti-Net neutrality practices

    Conciliation rewording by Commission, Oct 8th(?) 2009

    		 Article 1.3.a of the Framework directive.
    Measures taken by Member States regarding end-users’ access to or use of services and applications through electronic communication networks shall respect the fundamental rights and freedoms of natural persons, including in relation to privacy, freedom of expression and access to information and due process and the right to effective judicial protection in compliance with the general principles of Community law. Any such measures shall in particular respect the principle of a fair and impartial procedure, including the right to be heard.

    This paragraph is without prejudice to the competence of a Member State to determine in line with its own constitutional order and with fundamental rights appropriate procedural safeguards assuring due process. This may include requirements of a judicial decision authorising the measures to be taken and may take account of the need to adopt urgent measures in order to assure national security, defence, public security, and the prevention, investigation, detection, and prosecution of criminal offences.
    • – Only includes “measure taken by Member States”. Hence, the wording does not protect against anti-Net neutrality restrictions of people’s access to the Internet that could be imposed by ISPs
    • – No mention of a “prior decision” by a competent judge before measures are implemented
    • – Violates the ECHR given that the reach of the exceptions is substantially wider than what is allowed by the Convention
    • – Would grant administrative authorities with dangerous policing powers over the Internet
    • – No mention of people’s rights regarding the access and use of content on the Internet (only services and applications)
    • – ALLOWS FOR “THREE STRIKES” POLICIES IN EU and other anti-Net neutrality practices

    Rewording suggestion by La Quadrature du Net, October 20th 2009

    adressing good faith legal concerns while preserving core principles

    		“applying the principle that any restrictions to the access and usage of electronic communications services, in that they prevent the practical exercice of freedom of expression and communication and in order to ensure the proportionality of any such restriction, may only be imposed subsequentely to a decision by the judicial authorities, in accordance with the European Convention for the Protection of Human Rights and Fundamental Freedoms.”
    • + Equates Internet access with a fundamental freedom: that of expression and communication
    • +Justifies the reference to a “prior decision” by reminding the need to assess the proportionality of the restrictions to Internet access/freedom of expression and communications, thus placing the amendment under general principles of Community law

      • Further possible improvements:

    • In the event where the mention of “judicial authorities” still represents a problem for Member States, the term could be replaced by “an independent and impartial tribunal”.
    • An explicit reference to the importance of access for the Internal Market could help dissipate any doubt regarding to the compatibility of this disposition with the competence granted by article 95 TEC

    Conciliation rewording by Parliament, October 20th 2009

    		 Text to be inserted in Article 1:

    “3a. 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 such measures liable to restrict those fundamental rights or freedoms may only be taken in exceptional circumstances and imposed if they are necessary, appopriate and proportionate within a democratic society, and 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. In particular, any measures may only be adopted as a result of a prior, fair and impartial procedure ensuring inter alia that the principle of presumption of innocence and the right to be heard of the person or persons concerned be fully respected. Furthermore, the right to an effective and timely judicial review shall be guaranteed.

    This shall not affect the competence of a Member State, in conformity with its own constitutional order and with fundamental rights, to establish a requirement of a judicial decision authorising the measures to be taken.”

    • – Only includes “measure taken by Member States”. Hence, the wording does not protect against anti-Net neutrality restrictions of people’s access to the Internet that could be imposed by ISPs.
    • – Violates the ECHR given that the reach of the exceptions is substantially wider than what is allowed by the Convention
    • – No mention of people’s rights regarding the access and use of content on the Internet (only services and applications)
    • – ALLOWS FOR “THREE STRIKES” POLICIES IN EU and other anti-Net neutrality practices

    Conciliation rewording by Council, October 22th 2009

    		 Text to be inserted in Article 1:

    “3a. 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 the above measures liable to restrict those fundamental rights or freedoms may thereforeonly be taken in exceptional circumstances and imposed if they are necessary, appopriate and proportionate within a democratic society, and 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. In particular, anyThese measures may only be adopted as a result of a prior,shall respect the requirements of a fair and impartial procedure ensuring inter alia that the principle of presumption of innocence and includingthe right to be heard of the person or persons concerned be fully respected. Furthermore, andthe right to an effective and timely judicial review shall be guaranteed.

    This shall not affect the competence of a Member State, in conformity with its own constitutional order and with fundamental rights,inter alia to establish a requirement of a judicial decision authorising the measures to be takenand to adopt urgent measures in order to assure national security, defence, public security and the prevention, investigation, detection and prosecution of criminal offences.”

    • – Only includes “measure taken by Member States”. Hence, the wording does not protect against anti-Net neutrality restrictions of people’s access to the Internet that could be imposed by ISPs
    • – No mention of a “prior decision” by a competent judge before measures are implemented
    • – Would grant administrative authorities with dangerous policing powers over the Internet
    • – Violates the ECHR given that the reach of the exceptions is substantially wider than what is allowed by the Convention
    • – No mention of people’s rights regarding the access and use of content (only services and applications)
    • – ALLOWS FOR “THREE STRIKES” POLICIES IN EU and other anti-Net neutrality practices

    Revised proposition by the Council, October 28th 2009

    		 Text to be inserted in Article 1:

    “3a. 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 the above measures liable to restrict those fundamental rights or freedoms may therefore only be imposed if they are appropriate, proportionate and necessary within a democratic society, and 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 shall respect the requirements of a fair and impartial procedure including the right to be heard of the person of persons concerned and the right to an effective and timely judicial review.

    This shall not affect the competence of a Member State, in conformity with its own constitutional order and with fundamental rights, to establish, inter alia, a requirement of a judicial decision authorising the measures to be taken.”

    • – Only includes “measure taken by Member States”. Hence, the wording does not protect against anti-Net neutrality restrictions of people’s access to the Internet that could be imposed by ISPs
    • – No mention of a “prior decision” by a competent judge before measures are implemented
    • – Would grant administrative authorities with dangerous policing powers over the Internet
    • – No mention of people’s rights regarding the access and use of content (only services and applications)
    • – ALLOWS FOR “THREE STRIKES” POLICIES IN EU and other anti-Net neutrality practices

    FINAL TEXT agreed Nov 5th 2009

    		 Text to be inserted in Article 1:

    “3a. 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 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.”

    • “Measures taken by Member States”: The protection granted by the amendment only relates to measures taken by States, not private parties. Hence, restrictions imposed by operators at the request of right-holders do not fall under the scope of this provision.
    • “Procedure”: The text only mentions “a prior fair and impartial procedure” instead of a “prior ruling by the judicial authorities”, guaranteed by the original, which is much more specific in terms of the safeguards attached to the procedure leading to the restriction of the Internet access
    • The principle of amendment 138 was really simple and consisted in a few words aimed at reaffirm the fundamental principle of the separation of powers in the digital age, i.e. only judicial authorities can decide to limit fundamental rights and freedoms. This text is far way too longer, and much vaguer.
    • Satisfactory elements: Mention of “a prior procedure before the implementation of restrictions to access to and uses of the Internet.”, “the effective judicial protection and due process”, “the principle of presumption of innocence and the right to privacy”