EC Compromise Allows Mandelson Net Cut-Off Plan

Andrew Donoghue,

The Fifth Of November exploded activists’ hopes that an EU law would prevent Lord Mandelson’s plans to force the cut-off of illegal file-sharers

Internet freedom campaigners welcomed the provision but also expressed disappointment that it did not include Amendment 138. “Despite its lack of clarity and ambition, this text does provide legal ammunition to continue the fight against restrictions of Internet access. The agreed text does not meet the challenge of clearly preserving a fundamental right of access to the Net. Threats to Internet Freedom still loom, with the intense lobbying of the entertainment industries to push the ACTA treaty, which endangers Net neutrality and seeks to impose the liability of the technical intermediaries,” said Jérémie Zimmemrmann, co-founder of the citizen advocacy group La Quadrature du Net.

In a statement, the European Parliament appeared to question whether Amendment 138 would have been enforceable by European authorities, even if it was introduced. “There were serious doubts as to the legal validity of the amendment, as it would seem to go beyond the European Community’s competences in this field. This wording would arguably have required a harmonisation of Member States’ judicial systems – a condition that goes beyond what the Community can adopt under the legal basis of EC Treaty Article 95 on harmonisation measures for the internal market,” the statement said.

Governments in France and the UK have been pushing hard with plans to cut-off the Internet access of file-sharers. The UK government’s strategy, which will be officially announced in the digital economy bill in late November, will be introduced in two stages. The first will consist of sending letters to illegal downloaders and passing their details on to media companies, which have the option of launching their own legal actions. The second phase, which will be introduced a year after the legislation comes into force, could involve a number of technical measures including slowing down the connection speed of offenders or temporarily suspending their connections.

It is not clear at this stage whether the UK government’s cut-off plan adheres strictly to the conditions of the EU Freedom Provision agreement. “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 the European Convention for the Protection of Human Rights and Fundamental Freedoms. The right to an effective and timely judicial review shall be guaranteed,” the provision states.

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In a speech late last month at the Cabinet Forum, business secretary Lord Mandelson, who has been leading the net cut-off plan, stressed that offenders will be made fully aware that they are breaking the law before any legal or technical action is taken.

“Technical measures will be a last resort and I have no expectation of mass suspensions resulting,” he said. “If we reach the point of suspension for an individual, they will be informed in advance – having previously received two notifications – and will have the opportunity to appeal.”

Mandelson’s hard-line approach to file-sharing has already been heavily criticised by ISPs such as BT and TalkTalk, which have complained about the high costs of implementing such a scheme as well as the difficulties of enforcement. TalkTalk has even launched its ‘brightdancing’ ad campaign as a protest against Lord Mandelson’s plans to disconnect people accused of internet piracy without a trial.

Earlier in the month TalkTalk staged a demonstration in Middlesex, in which an Internet security consultant used Wi-Fi hijacking to download content, including Barry Manilow’s hit Mandy. Within a couple of hours he had identified 23 wireless connections that were vulnerable to Wi-Fi hijacking on a single street. The aim was to demonstrate the difficulties of proving who is to blame for an illegal download, and that Mandelson’s plan to disconnect offenders could result in a large number of innocent victims.