17th Jan 2022

'Right to internet' battle lost as parliament concedes no legal basis

  • The deal is a major reversal of the parliament's position for much of the last year (Photo: European Commission)

Early Thursday morning the European Parliament and EU member states finally reached a deal over a long-delayed telecoms package when MEPs softened their opposition to French-style 'three-strikes' laws aimed at illegal internet downloaders, ending for now the Brussels debate on a fundamental 'right' to internet access.

In a reversal of the parliament's position for much of the last year, MEPs in behind-closed-doors negotiations with the Council of Ministers, representing the member states, embraced new language in a compromise text that no longer requires that only judicial authorities be allowed to cut off internet access.

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Rather than requiring that a judge alone be the authority to order a severing of the internet connection, the compromise text reads that only a "prior fair and impartial procedure" is necessary, a phrasing that is sufficiently ambiguous that has allowed both sides to claim a win.

The Greens, who had led the battle against internet cut-off in the parliament, called the result a clear victory.

"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," said UK Green MEP Caroline Lucas.

"It is now up to national governments to respect this."

MEP Christian Engstroem, of the Swedish pro-downloading Pirate Party, which is allied with the Greens in the chamber, said the bill now "puts up a strong line of defence against the ‘three strike' Hadopi law in France and similar measures being pushed by Lord Mandelson in the UK."

But digital rights advocates remained underwhelmed.

"This text does provide legal ammunition to continue the fight against restrictions of internet access," said Jérémie Zimmerman, of France-based La Quadrature du Net, who added however: "The agreed text does not meet the challenge of clearly preserving a fundamental right of access to the net."

Young voters

The overall package originally had little to do with internet piracy originally, focussing on improving competition in the sector. Indeed, euro-deputies had no dispute with the Council over the bulk of the legislation.

But twice in the past year, MEPs with strong majorities inserted an amendment to the telecoms package that would have forbidden member states from restricting internet access without judicial authorisation and only in exceptional circumstances.

The move was in reaction to France's ‘three strikes' or ‘Hadopi' law, named for the new government agency charged with hunting down the pirates, backed by a series of special piracy judges, to cut off internet access and even jail repeat offenders after the third offence.

The UK has in the past week announced it too is to introduce a similar three-strikes bill and the Dutch parliament has called on the government to come forward with its own version of the law.

MEPs had strongly argued ahead of the European elections in June that three-strikes legislation is draconian and, with an eye to young voters, vowed to continue their opposition to such laws, maintaining that access to the internet had now essentially become a fundamental right as vital as access to water or electricity.

The deputies maintained that so many aspects of a citizen's participation in society - from paying bills to dealing with local government to reading the news - now required access to the internet that cutting off access from the digital world was depriving someone of a host of other rights.

The argument kicked off a global debate on whether access to the internet really was now evolving into just such a human right, with some arguing the parliament was quite premature in its advocacy of an internet access entitlement and others cheering the chamber for being at the cutting edge of digital democracy.

Resistance worn down

On 6 October, telecoms ministers formally rejected the parliament's key amendment - the now infamous Amendment 138 - requiring a ‘conciliation' process between the two sides.

On Thursday, this process concluded with the parliament backing away from the barricades.

Pressure from member states is understood to have worn down resistance from the elected chamber, not merely due to the desire on the part of a number of countries to introduce tough anti-piracy bills, but also because EU capitals felt that the European Parliament was getting too big for its britches and encroaching in a judicial area responsibility for which is jealously guarded by European national governments.

MEPs in the end capitulated before this argument, conceding that they had no competence to legislate in this field.

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