New EU regulation: law undermined by more back room dealing

The first phase of writing new regulation for EU telecoms took place last night when the parliamentary Industry, TRansport, Energy (ITRE) committee met to draw up rules from the period of consultation that has just concluded.

In short, ITRE surprisingly voted by 40 to 4 to reinstate the controversial Article 138, which protects users\' right of access, but this is no time to celebrate. The weasel words "conditions limiting access to and/or use of services and applications" were smuggled into Rapporteur Catherine Trautmann\'s final draft of the Framework Directive and are bad news indeed.

They were first tabled by the Universal Services directive rapporteur, Malcolm Harbour, in his own report, and they have now been carried over into the Access and Authorisation directives by Mrs Trautmann.

In the short-term, the problems are procedural. In the longer term they are potentially catastrophic for the future of the internet as we know it. They place power over our access to services and content the hands of Europe\'s largest telcos (and by extrapolation the big cellcos, which are owned by those same telcos in the main) and large, content-owning corporations, although companies such as Google in theory could also get in on the act.

Short term first: the result means that the Parliament is at loggerheads with the Council, and the whole Telecoms Package will go into third reading after the European elections in June.

"We will not know for sure however, until the plenary - full Parliament - vote on 5th May. It is usual for the plenary to follow the guidance of the Committee vote, but in  a contentious situation such as this, that does not necessarily follow," comments Monica Horten, a veteran telecoms journalist, currently working for her PhD on the political battle for online content in the EU, points out in her highly informative account of the proceedings.

The longer term implications are harder to grasp as trying to follow a single line through the thinking behind the review of the so-called telecoms package is like trying to herd cats. It is full on twists, turns and inconsistencies.

The first outrage was committed behind closed doors last October and without public debate and process - the scrapping of Amendment 138 by the European Council. The Amendment was a simple restatement of a fundamental part of European law, to wit, only the judicial authority can order restrictions on fundamental rights and freedoms, including access to internet content and services.

It was designed to guard against the introduction, favoured by the French and British governments, of obliging ISPs to suspend users\' access to the internet for transgressions as prescribed by the government, such as downloading content illegally, without recourse to the judiciary.

This is often referred to as the three-strikes, incremental response or specifically in the French case, Hadopi, after the public authority which Sarkozy wanted to set up to impose sanctions on naughty French users, although it is not a court of law. Those who oppose the three strikes/interceptor approaches argue that it sets up a parallel administrative system that is in direct contradiction of the principle of European law quoted in Article 138.

Article 138 was approved by 88% of the Members of the European Parliament in first reading of the EU Telecoms Package, on September 24th 2008.