European ministers approve watered-down 'neutral net' language

The question before the European Council -- made up of heads of state and key ministers from the EU's 27 member nations -- was whether Internet access should be interpreted as a fundamental human right, and whether obstructing access could be construed as a rights violation. The answer came this morning, and it is apparently no.

A declaration from the European Parliament this morning provided glimpses of a newer round of compromise language for the EU's new regulatory framework for telecommunications. That language will be even more conciliatory than last week, when the European Commission (EC) announced the new regulatory authority. Although the EC made it appear at the time that adoption of its new framework was merely a formality at that point, that wasn't actually the case.

As the Parliamentary communiqué acknowledged, the Council (which oversees high-level legislation) made a long debate out of how best to implement the "neutral net" provision that Comm. Viviane Reding proclaimed last week was as good as adopted. That provision was already a reworded form of the original Amendment 138 to the telecom framework, which would have proclaimed 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." That original language would have implied that Internet use was a fundamental human right; in which case, restricting access rights for prisoners would have been on a level with restricting food.

That's how Council members viewed the situation, as they rejected that language twice, triggering what Parliament termed a conciliation session. There, members of Parliament joined with the Council to rearrange the text, which prior to this morning had read as follows: "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."

That text has apparently been tweaked once again, and the full Parliament is scheduled to vote on that text later this month. A revised draft has yet to be released.

At issue was whether France would be able to continue prosecuting its HADOPI "three strikes" law, which would restrict Internet service to individuals after three instances of complaints of copyright violation. After having been struck down by the French high court, a revised version of the law was passed last month guaranteeing judicial review of any final access rights suspension.

It's that "judicial review" that was maintained in the latest version of the telecoms framework, which may finally reconcile the new framework with French law.

When the EC approved the November 5 version of the framework, it was either a tremendous victory or an historic defeat for Internet users' rights, depending upon whom you asked. In the UK, Green Party leader Caroline Lucas proclaimed, "The message from this EU legislation is clear: Access to the Internet is a fundamental right and proper procedures must be followed when challenging internet users on alleged copyright infringement. It is now up to national governments to respect this."

A close read of the text may prove otherwise: Although the European Convention is cited, it's only with respect to granting due process for a hearing into whether access suspension violates the citizen's existing rights to free expression -- it doesn't add Internet access as a fundamental right. In fact, that's perhaps the primary reason for the clarification in the first place.

But the existence of the clarification was called out by French activist group La Quadrature du Net. Upon first reading the amended amendment, group leader Philipe Aigrain argued that the new language would reduce existing freedoms guaranteed by human rights conventions -- adopting the stance of European countries other than France where lawmakers have argued existing free speech rights extend to the Internet, such that access rights are free speech rights. Thus the watering down of the proposal, stated the group, "amounts to legitimizing an Orwellian surveillance of the Net."