Wednesday, 25 November 2009

Brussels Defends the Pirates

A new front is being opened today in French President Nicolas Sarkozy’s war against internet file-sharing. Yesterday the European Parliament voted on a telecoms package containing ‘right to internet’ provisions which could challenge new French and British laws that would cut off internet access for persistent illegal downloaders.

As I write this entry the Swedish presidency and the parliament’s president are signing the massive overhaul of Europe’s telecom industry in Strasbourg. Among other things it will improve cooperation between European telecom regulators, strengthen privacy protection by allowing users to opt in to the use of cookies, and push broadband rollout across the EU to achieve 100% coverage by 2013. But the lion’s share of attention to the bill has been devoted to its provision for “internet freedom” – the first time such a right has been enshrined in law anywhere in the world.

That provision was largely a response to efforts begun by Sarkozy earlier this year to introduce a French law dubbed “HADOPI” that would cut off internet access to people who persistently download music illegally. In the next few weeks the UK is expected to unveil its Digital Economy bill that will do the same. Spain and Ireland have also been considering introducing such measures. Civil libertarians have been lobbying the EU to introduce some kind of measure to protect EU citizens from an internet ban imposed by their national government.

The European Parliament took up the cause, but in the end it was forced to make a big compromise with the member state governments in order to get the telecoms package to pass. Though the original version of the legislation had mandated that any order for cutting off someone’s internet must go through a judge, the language had to be watered down to simply say internet can be restricted “only after a fair and impartial procedure including the user's right to be heard.” Of course, what constitutes a fair and impartial procedure seems to have been left up to the member states.

Lisbon Treaty’s Effect

Protests over the French and British bills have grown louder over the past few months. In the UK, an e-petition against it has so far collected 11,000 signatures. In France, the extensive Francophone blogosphere has been virtually illuminated with rage over the HADOPI bill. And noises from Spain that they will follow suit have elicited a quick and sharp response from top EU officials. Yesterday EU telecoms chief Viviane Reding warned that the EU would take action against Spain if the government moves to cut the internet access of content pirates.

Needless to say, these protestors are disappointed with the outcome of the parliament’s compromise. But this controversy has been an interesting illustration of how the Lisbon Treaty is going to change situations like these. This is a classic parliament-versus-council issue, where the MEP representatives of the people step in to override member states who they believe have overstepped their authority. It is exactly the kind of role the parliament was devised to fulfil. Because of the way the EU has worked up until now it has historically been difficult for the parliament to win these types of battles, since every provision they introduce needs the approval of the European Council, which is composed of the heads of EU countries.

However with the entry of the Lisbon Treaty into force next week, the parliament will get new increased legislative power over the other two branches of EU government. This, rather than the new position of President of the European Council which the media has focused on, is really the more consequential change heralded by the treaty. By some estimates the parliament’s power will effectively double next week. For the first time the parliament will get a say over the budget, judicial cooperation, immigration, structural funds, public services, transport, farm policy, energy security, intellectual property and personal data protection.

If this telecoms package was working its way through parliament just a few months later (or if the Lisbon Treaty had been ratified earlier), the compromise on internet freedom may not have been necessary. It’s an interesting illustration of the ramifications of the treaty, a reality which I think national governments haven’t fully woken up to yet. This internet cut-off issue certainly has legs, and my guess is this isn’t the last time the issue will be brought up by parliament. But in the future, the parliament may have the heft to force the council to accept guarantees of internet rights.


french derek said...

You, or someone, still has to convince me that pirating the work of people who have spent time, money and often artistic talent is somehow worth supporting. The first version of HADOPI was unworkable; HADOPI gets the balance right, in my view: three counts and you're offline - for a specified period (ie not forever).

Theft is theft, and it is recognised as a crime in all countries I have visited. What's so special about internet-based theft that it should be exempt from the challenge of law?

Joe Litobarski said...

French Derek,

My problem is this: it seems you can't have privacy without piracy.

Under the French law (if I understand it correctly), the owner of the internet connection will be responsible for everything downloaded. So it is your job to secure your wireless connection with a password and monitor everyone that uses it.

This means there is little future for free, ubiquitous wireless in Europe unless there's some system for tracking individual users.

Surely that sort of system is open to abuse. We know how insecure data is nowadays.

So we need to choose which one we want. Privacy or piracy?