European Parliament and Council: pistols at dawn?

The Bois de la Cambre outside of Brussels was once a regular venue for “pistols at dawn”, and 30 December may yet again be a fateful date.

According to a Press Release from the European Parliament, the Parliament and Council begin conciliation proceedings on the telecoms package on 4 November, which must agree a joint text by 30 December.  If they do not agree a text, or if the text is not passed without amendment by both the Parliament (on simple majority of votes cast) and the Council (by qualified majority), then the telecoms package falls and the whole process must be started with a new proposal from the Commission.

There is one open issue: the question of internet access.  This involves amendments to Article 8 of the Framework Directive 2002/21/EC (as set out in the Parliament’s second reading position paper – see relevant documents here).  In particular, the Council does not accept the Parliament amendments:

in paragraph 4 [of Article 8], points (g) and (h) shall be added:

[4.  The national regulatory authorities shall promote the interests of the citizens of the European Union by inter alia:]

(g)  promoting the ability of end-users to access and distribute information or run applications and services of their choice;

(h)  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 scrutiny is threatened in which case the ruling may be subsequent.

The Council have yet, as far as we are aware, to make known to the Parliament their objections to this amendment.  It is suspected that the “prior ruling by the judicial authorities” phrase is the stumbling block, but as this has now been introduced (albeit with some controversy over the method) in France’s HADOPI II, the only member state so far with a “three strikes” law, it is a surprise that it continues to hold up the whole telecoms package.

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HADOPI 2: an update

We’ve been alerted via Twitter (HT @clarinette02) to another problem with HADOPI 2.  This is described in a recent French online journal article (Hadopi : condamné à ne pas changer d’opérateur télécom).  In essence, it seems that if a customer of a communications provider who provided internet access as part of a bundled package seeks to change that communications provider during a period of internet suspension, even if the customer wishes to change for valid reasons (e.g. poor telephone or cable TV service for other parts of the bundled package), then under HADOPI 2 that customer will be liable for a fine of up to €3,750.

Ouch.

HADOPI II – Danger internautes

It is not often that we resurrect our GCSE/O Level French (or bug our bi- or tri-lingual colleagues – thank you Elora and Emanuela) to read a French language statute, but HADOPI II is an exception. This is the French “three strikes” copyright protection law, nicknamed HADOPI II after the acronym for the Haute Autorité pour la Diffusion des Œuvres et la Protection des droits sur Internet, the new regulatory body created by the law.  The “three strikes” relates to suspending internet access to subscribers who are deemed to have breached copyright, e.g. filesharers, after two previous warnings.  HADOPI I was killed off by the Constitutional Court in June for the lack of any judicial intervention in the procedure to cut off internet access.  HADOPI II was passed by a narrow majority (285 v 225) in the French National Assembly yesterday.  Suspension can be for up to one year, and the subscriber can also be fined up to €5,000.

The only material difference in the new law is the introduction of a judicial step before the final “strike”, but this uses the l’ordannance pénale procedure.  Whilst this is obviously not our specialist area, we understand that this is a light touch criminal procedure.  It means that HADOPI will be able to draft a judicial order, including any penalties, for issue by a magistrate.  The order becomes final after a certain period, unless the defendant appeals the order, in which case there is a trial.

Why is this important in the UK?  Two reasons: the Government has announced that it is looking at similar legislation, and the possible inclusion of a three strikes provision is one of the outstanding matters holding up the passing of the reform of the Framework Directive and the other six-pack electronic communications directives. 

[We would welcome any informed comment on the l’ordannance pénale procedure – is our summary above accurate?]