The mutation of Europe's 'internet freedom' law

Agreement has been reached on the now-famous Amendment 138/46, allowing the Telecoms Reform Package to become law next year.

Some rights activists are semi-up-in-arms about the final version of the amendment, saying it does not offer as much protection against internet disconnection as the original provided. Our main, comprehensive story on the agreement is here, but we also thought it worthwhile to show precisely what changed.

See for yourself. Here's the original Amendment 138/46 (.pdf; see page 41), voted through by the European Parliament in May, but rejected by the Council of Telecoms Ministers:

... 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 security is threatened in which case the ruling may be subsequent.

And here's the full text of the new Internet Freedom Provision, a.k.a. Article 1(3)a of the new Framework Directive:

Measures taken by Member States regarding end-users' access to or use of services and applications through electronic communications networks shall respect the fundamental rights and freedoms of natural persons, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and general principles of Community law.

Any of these measures regarding end-users' access to or use of services and applications through electronic communications networks liable to restrict those fundamental rights or freedoms may only be imposed if they are appropriate, proportionate and necessary within a democratic society, and their implementation shall be subject to adequate procedural safeguards in conformity with the European Convention for the Protection of Human Rights and Fundamental Freedoms and general principles of Community law, including effective judicial protection and due process.

Accordingly, these measures may only be taken with due respect for the principle of presumption of innocence and the right to privacy. 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 crucial replacement is that of "a prior ruling by the judicial authorities" with "a prior fair and impartial procedure". That's a serious change, as it represents the difference between a court order and a far more nebulous "procedure".

The right to a timely review of the disconnection decision is, however, a bit more comforting.