The online community breathed a collective sigh of relief at the end of September. The European Telecoms Package was passed, but without a number of controversial amendments that would have threatened the right to freedom of expression for internet users – in particular, the amendments that looked set to enable Nicolas Sarkozy’s ‘three strikes and you’re out’ scheme were removed.

In passing the Telecoms Package, the European Parliament removed a requirement for internet service providers (ISPs) to enforce copyright, rejected an amendment giving rights-holders access to communications traffic data and dropped without a vote a proposal for the somewhat sinister-sounding ‘joint industry solutions’ between ISPs and creative content providers. By doing so, the European Parliament made it clear that the European Telecoms Package must not stand as a barrier to users or a vehicle for rights-holders to put in place draconian measures as punishment for copyright infringement. It also means that users’ access to the internet cannot be restricted in any way that would infringe their fundamental rights, and that any sanctions for abuse should be proportionate and require a court order.

Package fearsIt is probably fair to say that there would have been a great deal of compromise involved to get the Telecoms Package through. The original idea was laudable: the European Parliament wanted to give consumers better rights, given that telecoms on the continent operates in a very different climate to our own. The aim was to see the key issues that protect consumers addressed. However, as the package went through committee stage, there was a growing fear among internet users that it risked being hijacked by content providers. In essence, the fear both of users and ISPs was that the responsibility for online enforcement of copyright and, indeed, the more widespread policing of users’ activities was being forced on to the ISPs.

For many users and, indeed, ISPs this was seen as a bridge too far. ISPs did not want to have the burden of policing their clients for illegal activities and consumers were, quite understandably, extremely worried that they could be banned from the internet if they were merely suspected of doing something wrong.

There was a real danger that the amendments to the proposed package would have derailed essential telecoms liberalisation measures. It might have created a worrying digital divide, leaving some people unable to access the electronic data they needed to do business. On suspicion alone, people could have been completely isolated from vital communications technology. This would have left us with an unacceptable breach of rights and a two-tier society.

Checks and balancesCopyright piracy in the online environment is undoubtedly a hugely important issue – no one is denying that. The problem with the Telecoms Package amendments was that content providers were seen as trying to bring in control and monitoring for copyright infringement by stealth, under the aegis of targeting terrorists and paedophiles. What has happened in the end is actually very good for consumers, and demonstrates a welcome example of checks and balances within the European Parliament working as they should.

One of the most interesting aspects of this is the way in which opposition to the proposals was mobilised. The proposals were a threat to the online world, and were responded to politically and democratically through the online world. Rather than taking to the streets or sending letters to MEPs to voice disapproval, the online community collaborated to create a lobby that was impossible to ignore. Blogs were written, social networking sites were targeted, mass emails were sent – and the result was a victory for practical democracy, and a striking example of the political process being influenced by the so-called blogosphere.

This is also the first time in which the use of and access to the internet has been considered to be part of an individual’s fundamental rights. With amendment 138 of the package in place, it is now clear that no restriction may be imposed on a person who may be suspected of breaking the law without a prior ruling by the relevant judicial authority, save when public safety is threatened. In other words, removing somebody’s ability to use the internet is the same as taking away their phone line or saying that they are no longer permitted to write a letter.

However, it is probably fair to say that this was a battle won, rather than a war. Content providers around the world are very keen to get ‘three strikes’ legislation passed, as the old technique of remuneration at point of sale becomes threatened and copyright holders attempt to reinforce it. The European Telecoms Package was always intended to reinforce the right to freedom of expression, and there was a real worry that the proposed amendments would have run contrary to the Charter of Fundamental Rights – this was not the time or the place for the content providers to throw their weight around.

In the latest development, Sarkozy has faced another setback, the European Commission having rejected his request that its head, José Barroso, overturn the ban on cutting internet access to those who download films or music illegally. The EC reaffirmed that the amendment was ‘an important restatement of key legal principles inherent in the legal order of the European Union’, and left member states scope for ‘reaching a fair balance between several fundamental rights’. For Sarkozy and for France, it means that the vote on the French ‘three strikes’ law must be postponed until 2009.

Reaching a compromiseAs to the future of the package, there will undoubtedly be a great deal more political manoeuvring and debate before a compromise acceptable to all can be reached. Already, there seems to have been a huge amount of wrangling behind the scenes, with some amendments being thrown out, some being dropped by their sponsors before the vote and others coming through with significant changes.

It will be interesting to see the developments that take place before the Telecoms Package finds its place in European legislation. The war against copyright infringement is likely to be a lengthy one, and although a ban on the internet for the culprits is certainly not the answer, something must be done to ensure content providers’ rights are protected. For the moment, however, consumers can quietly celebrate a victory for freedom of expression.

Susan Hall is a partner at Cobbetts