The European Convention on Human Rights
On 29 May the Council of Europe (not to be confused with the European Commission) adopted a declaration and resolution concerning human rights on the internet. A glittering cast of ministers were there – though Britain could only rustle up a ‘project manager’. The Council emphasized the European Convention on Human Rights, which it authored more than half a century ago, and the case law of the European Court of Human Rights. It stressed the relevance of human rights to the internet, the need to explore how rights are affected by its new modes of communication and the importance of co-operation between nations because ‘the very nature of the information society and, to an even greater extent, of the Internet, has significant cross-border implications. Article 10 of the European Convention on Human Rights [freedom of expression] is especially relevant in this respect given that the rights and freedoms protected therein are guaranteed “regardless of frontiers”.’
On 10 June France’s Constitutional Council (Conseil constitutionnel) struck through parts of the HADOPI law against illegal file-sharing on the grounds of a conflict with fundamental human rights – a pre-Convention expression of them in the Déclaration des droits de l'Homme et du citoyen of 1789. Article 9 (presumption of innocence) was the basis for objecting to the idea that it should be up to those accused of illegal file-sharing to prove the infringement was the fraud of a third-party. Article 11 declares that the ‘free communication of ideas and opinions is one of the most precious rights of man’. It was the justification for saying that internet access should not be cut off except by a court – attacks on the right to communicate must be ‘necessary, appropriate and proportionate’.
EU Charter rights
Amendment 138 to the Framework Directive that the Commission is fighting states:
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
Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.
The Digital Britain proposals provide for an initial year trial period of sending out notifications to infringers and identifying serious offenders so that they can be sued by rights-holders. If that fails to reduce illegal file-sharing by 70%, then Ofcom will be able to require ISPs to apply an armoury of ‘technical measures’ such as blocking (site, IP, URL), protocol blocking, port blocking, bandwidth capping (capping the speed of a subscriber’s Internet connection and/or capping the volume of data traffic which a subscriber can access); bandwidth shaping (limiting the speed of a subscriber’s access to selected protocols/services and/or capping the volume of data to selected protocols/services); content identification and filtering – or a combination of all of the above. Which means, despite protestations to the contrary, a ‘three-strikes’ policy remains firmly on the UK legislative agenda.
Digital Britain and the file-sharing consultation propose that the ‘technical measures’ could be imposed by ISPs with no prior ruling by a judicial authority:
It also seems reasonable and appropriate that, should further obligations be imposed, consumers have access to a clear and transparent (and independent) appeals mechanism since such measures may be taken against them without the benefit of a judicial hearing. In those circumstances it may be appropriate for an enhanced consumer appeal process to be introduced along the lines of an ombudsman.ISPs’ powers are circumscribed: Ofcom would have to be satisfied that the imposition of technical measures by ISPs is objectively justified and proportionate and either House of Parliament could anul the power to impose technical measures – ‘this should ensure that the power cannot be used frivolously’. But these fall short of prior judicial rulings in individual cases.
Digital Britain in Digital Europe
If Amendment 138 of the Telecoms Package is adopted, then there would be a potential conflict with EU law. On 17 June Lord Carter made a statement to the House of Lords reporting the 11 June EC Telecommunications Council meeting. EU Telecoms Commissioner Viviane Reding had, he said, expressed concern that refusing to adopt Amendment 138 would delay the Telecoms Package as a whole but the UK had objected, as Lord Carter explained: ‘The vast majority of member states said that they could not accept the EP amendment, some noting that it potentially interfered with national competencies. The UK noted that the amendment was unacceptable both in legal and policy terms, noting how it could constrain future decisions of the Government.’
The UK file-sharing consultation states that ISPs would follow a code and Ofcom would not approve any part of the code that imposes an obligation contravening UK or EU law. The consultation, however, is only consulting on a code for a system of notification and collecting infringement information, not the application of ‘technical measures’. ‘Technical measures’ are only pencilled in for implementation in 2012, so the UK government may be deliberately leaving this aspect of the legislation open until the Telecoms Package is put to bed.
However, even if Amendment 138 isn’t adopted, then trial by ISP may still fall foul of the European Court of Human Rights. Jan Kleijssen, director of standard setting at the Council of Europe, said (before the HADOPI law was gutted) that ‘experts at the Council expected in fact that the so-called French HADOPI law, which cuts internet access for three-time suspected IP rights infringers, eventually will arrive at the European Court of Human Rights’ (IpWatch). Furthermore, the Charter and Convention denounce ‘interference’ with free expression – why should that only apply to cutting off internet access? ‘Interference’ is a fair description of all the ‘technical measures’.
Is Digital Britain heading for three strikes? Strike 1: the decision of the French Conseil. Strike 2: Amendment 138. Strike 3: incompatibility with the Convention on Human Rights. You can cut the courts out of the laws but you can’t cut the laws out of the courts.