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26th Apr 2019

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EU telecoms bill compromise may still threaten French internet law

A second attempt by the French government to push through its "three-strikes" bill to crack down on internet piracy may yet fall afoul of European Union rules, following an ambiguous compromise agreed between the European Parliament and EU member states on a piece of telecoms legislation.

Paris is confident that it can move ahead, while others believe to do so establishes grounds for the European Commission to begin legal action against France.

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On Wednesday (29 April), the French government placed before parliament for a second time its controversial "three-strikes" law. On 9 April, the same bill went down to defeat because not enough deputies from the governing party had bothered to turn up for the vote. French lawmakers are not expected to be caught out to lunch a second time and will likely approve the re-introduced law sometime in May.

However, late on Tuesday (28 April), the European Parliament and EU member states, which legislate jointly in this area, reached an informal compromise over an amendment to a wider telecoms package that had in an earlier version threatened to outlaw legislation like the French three-strikes scheme.

The French bill would cut off internet access to users for up to a year if they are caught downloading copyright content without permission of the copyright owner after having received two warnings to cease doing so.

By a large margin, the EU parliament had found such sanctions to be grossly disproportionate to the crime and, in a deliberate targeting of the French law, had attempted to tack onto the telecoms bill an amendment requiring a court order before internet access could be interrupted.

The telecoms bill originally solely concerned itself with telecommunications infrastructure rather than content, further liberalising the sector and creating an EU-level telecoms regulator.

But EU member states, heavily lobbied by Paris, felt that the amendment would in effect create a new 'fundamental right to internet access', and strongly opposed the change.

The Pirates are coming

MEPs for their part stood firm in their support for the amendment, emboldened or concerned ahead of the June European Parliament elections by the strong popular outrage, particularly amongst young voters, at both the French bill and a recent one-year prison sentence for online copyright violators in Sweden.

In Sweden, a new political grouping whose platform focuses on internet freedoms, the Pirate Party, is vacuuming up the votes of young people and is on course to win at least one seat in the June elections.

In the end, a compromise between the two sides on the amendment softens the requirement for a court order before internet access can be cut, but still requires a judgement by "an independent and impartial tribunal".

On Wednesday, the member states approved the compromise text, and the full sitting of the parliament is also expected to endorse it next week in Strasbourg.

However, the amendment's previous wording had been very clear that a judicial ruling was required prior to access being cut, while the new language does not indicate whether this is still the case or whether now the onus is on the accused to appeal to a court after access has been cut.

La Quadrature du Net

Christine Albanel, the French minister of culture, declared that the EU has now said that the three-strikes bill is "still alive".

Catherine Trautmann, however, the French Socialist MEP responsible for shepherding the telecoms bill through the European Parliament and a former French minister of culture herself, believes the compromise does indeed block the French law.

The European Parliament "has managed to obtain a recognition of internet access as an essential means of exercising fundamental rights ... and that any restriction of these rights can only be made by the judgement of an independent and impartial court," she said.

La Quadrature du Net, an internet-freedom pressure group prominent in campaigning against the three-strikes bill argues that the French law "remains as contradictory" to the compromise as it was to the original amendment. However, the group also thinks that there is sufficient ambiguity that now a lengthy court case will be required to prove that it does not respect the right to due process.

French Socialist MEP Guy Bono, the author of the amendment, believes that the compromise "is still loyal to [its] spirit."

He will however still vote for his original wording because it is more "legally precise", he said in response to the announcement of the compromise.

Nevertheless, he said the new language "has the advantage of constituting a tight legal basis that makes it possible [for the European Commission] to launch infringement procedures against the French government for not respecting community law if the [three strikes] bill is adopted."

The MEP intends to push the commission to do so in such an event.

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