Telecoms Package: A Missed Opportunity for Citizen’s Rights

Paris, November 24th, 2009 – There is no reason to celebrate the general outcome of the Telecoms Package. The final text voted today is far from satisfactory: while it includes some consumer protections, they fall short of compensating for the various loopholes and threats to fundamental rights contained in the rest of the text.

Despite the optimistic outlook¹See the Commission’s press release regarding the adoption of the Telecoms Package: http://europa.eu/rapid/pressReleasesAction.do?reference=MEMO/09/513&format=HTML&aged=0&language=EN&guiLanguage=fr of the Commission on this major reform of the European telecommunications sector, the harmful elements included in the final text could represent a step backwards in many Member States with regards to the defense of the fundamental right of access to Internet. Contrary to the original “Amendment 138“²Amendment 138 provided that “no restriction may be imposed on the fundamental rights and freedoms of end-users, without a prior ruling by the judicial authorities. Read the full amendment and its evolutions: http://www.laquadrature.net/en/an-evolution-of-amendment-138, the so-called Internet Freedom Provision³See our analysis of this provision: http://www.laquadrature.net/wiki/Telecoms_Package_Amendment138_compromise_20091105 leaves the door open for restrictions of Internet connections without a prior judicial decision.⁴Despite this weakness, it will however remain possible to challenge any HADOPI-like law as non-compliant with the requirement of a prior fair and impartial procesure and as failing to respect the rights to privacy. Another loophole in the provision is that it only relates to measures taken by Member States and thereby fails to ban dangerous traffic management practices, such as the filtering or prioritizing of content, services and applications by Internet Service Providers (ISPs). The agreed Telecoms Package thus allows for anti-competitive, anti-innovation and liberty-killers discrimination coming from infrastructure owners, who could shape information flows according to their own commercial interests.

Likewise, even though it is encouraging, the Commission’s declaration on Net neutrality⁵See the Commission’s declaration on Net neutrality: http://www.laquadrature.net/wiki/Commission_Declaration_on_Net_Neutrality_20091123 added to the Telecoms Package does not have any normative effect. Whereas the United State is on the verge of mandating Net neutrality to fixed and wireless ISPs, European lawmakers have failed to enforce this fundamental principle. This is all the more worrying considering the growing number of malpractices⁶See our press release on a recent announcement by Vodafone on the part of ISPs.

Grey areas in the text are left open to judicial interpretation, and competition law will assuredly not suffice to fully guarantee citizens’ rights. Also, the lack of clarity of many provisions will require close scrutiny in the process of transposition and application of this important piece of legislation.

For these reasons, it is regrettable that the Parliament’s uncritical political consensus on the Telecoms Package, led by rapporteurs Catherine Trautmann and Malcom Harbour, does not reflect the deep concern of millions of Europeans for the protection of Internet freedoms.

“Whereas in France the Constitutional Council, the highest jurisdiction, ruled recently that freedom of expression and communication implies freedom to access the Internet⁷Decision 2009-580 DC, available in english at http://www.conseil-constitutionnel.fr/conseil-constitutionnel/francais/les-decisions/acces-par-date/decisions-2009/2009-580-dc/version-en-anglais.46039.html point 12: ’12. Article 11 of the Declaration of the Rights of Man and the Citizen of 1789
proclaims : “The free communication of ideas and opinions is one of the most precious rights of man. Every citizen may thus speak, write and publish freely, except when such freedom is misused in cases determined by Law”. In the current state of the means of communication and given the generalized development of public online communication services and the importance of the latter for the participation in democracy and the expression of ideas and opinions, this right implies freedom to access such services.’, European lawmakers have not done enough to protect the fundamental rights of citizens. Under the pressure of Member States and special interests, the Parliament has undoubtedly backed away from its initial strong stance in favor of an open, neutral and competitive Internet. The European Union just missed a historical opportunity to affirm the crucial importance of free access to the Internet for the future of our societies, and was unable to resist the will of national governments and corporations to be in position to take control of the communicational infrastructure.“ concludes Jérémie Zimmermann, spokesperson for the advocacy group La Quadrature du Net.