2002/22/EC/THIRD READING TARGET/Amendments
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Contents |
Amendment 1
Paragraph 3 of Article 1 shall be - deleted -
Justification:
In order for Article 1 to clearly define the subject-matter and scope of this directive, Article 1, paragraph 3, as adopted in 2nd reading should be deleted. The language of Article 1, paragraph 3, is not clear, and could be interpreted as allowing restrictions on the right of end-users to access internet services and applications, without any guarantees that fundamental rights and freedoms of end-users shall be respected, by stating that it does not aim to prohibit such restrictions to users' access to and/or use of services and applications. This would be contrary to the acquis communitaire in terms of consumer protection. Such guarantees to fundamental rights and freedoms of end-users include disclosure of network management practices and guarantees to the right to fair trial before any restrictions are imposed.
Amendment 2
The following shall be added:
(b.1.a) information on the provider's network management practices, including the technology implemented by the operator for managing the network, as well as rules and criteria such as the thresholds and exceptional circumstances that will trigger changes in the users' experience of the services. Depending on the technology used, this may require user consent under Article 6§3 Directive 2002/58/EC,
Justification:
The amendment underpins the balanced approach in protecting the rights and freedom of end-users and the rights and freedoms of others provided in Article 32a of Directive 2002/22/EC adopted in first reading (Amendment 166). The amendment strengthens transparency with respect to the way providers of electronic communications services are operating to enable end-users' access to content, applications, and services of their choice. The provision of information related to the network management policies provided by electronic communications providers is an essential prerequisite to implement the principle of protecting fundamental citizens' rights provided by Amendment 166 in first reading.
Amendment 3
The following shall be deleted:
(b.2) information on any other conditions limiting access to and/or use of services and applications, where such conditions are permitted under national law in accordance with Community law,
Justification:
The need for disclosure is covered by Amendment 2 above.
Amendment 4
The following shall be deleted:
(b.4) information on any procedures put in place by the undertaking to measure and shape traffic so as to avoid filling or overfilling a network link, and on how those procedures could impact on service quality,
Justification:
The need for disclosure is covered by Amendment 2 above.
Amendment 5
The following shall be deleted:
(b.6) any restrictions imposed by the provider on the use of terminal equipment supplied;
Justification:
Article 7 and Article 8 of Directive 1999/5/EC on radio equipment and telecommunications terminal equipment and the mutual recognition of their conformity allows for the putting into service of any terminal equipment which complies with essential requirements. In order to implement the policy in Directive 1999/5/EC, any terminal equipment which meets EU technical standards must be allowed to be attached to the network by any end-user. Use of terminal equipment with interoperable and standardised interfaces must therefore not be subject to restrictions imposed by a provider.
See also Guide to the R&TTE Directive 1995/9/EC (version of 20 April 2009)
Amendment 6
The following shall be deleted:
or to disseminate harmful content,
Justification:
The meaning of the word harmful is subjective and cannot be defined at EU level. Creating obligations or suggestions for activities involving the word harmful will hence increase the risk for diverging national transpositions and is therefore not compatible with the purpose of this directive to ensure the availability throughout the Community of good quality publicly available services.
Amendment 7
The following shall be added:
(ba) inform subscribers of any change to the provider's network management practices, including the technology implemented by the operator for managing traffic, as well as rules and criteria such as the thresholds that will trigger changes in the users' experience of the services or, where necessary, specific actions included in the network management policy. Depending on the technology used, this may require user consent under Article 6§3 Directive 2002/58/EC;
Justification The amendment underpins the balanced approach in protecting the rights and freedom of end-users and the rights and freedoms of others provided in Article 32a of Directive 2002/22/EC adopted in first reading (Amendment 166). The amendment strengthens transparency with respect to the way providers of electronic communications services are operating to enable end-users' access to content, applications, and services of their choice. The provision of information related to the network management practices provided by electronic communications providers is an essential prerequisite to implement the principle of protecting fundamental citizens' rights provided by Amendment 166.
Amendment 8
The following shall be deleted:
(c) inform subscribers of any change to conditions limiting access to and/or use of services and applications, where such conditions are permitted under national law in accordance with Community law;
Justification
The need for disclosure is covered by Amendment 7 above.
Amendment 9
The following shall be deleted:
(d) provide information on any procedures put in place by the provider to measure and shape traffic so as to avoid filling or overfilling a network link, and on how those procedures could impact on service quality;
Justification
The need for disclosure is covered by Amendment 7 above.
Amendment 10
The following shall be deleted:
or to disseminate harmful content,
Justification:
"Harmful" is entirely subjective and is not a legally defined or legally definable concept. Other provisions in this directive establishes that this is something that needs to be addressed on a national level. As a result, every attempt to create obligations or even suggestions of activities at an EU level with regard to "harmful" content can only serve to create barriers to the single market and is therefore not compatible with legislation aimed at improving the functioning of the single market.
Amendment 11
The following shall be added:
3a. The rules and guidelines that a network operator has put in place to control the flow of traffic on the network for whatever purpose, or network management practices, shall not discriminate among individual functionally comparable data streams. Traffic can be prioritised, blocked or filtered only when such measures are both limited in time and supported by justified technical reasons, such as acute network congestion or in response to prevent malicious activities threatening network security or end user security. In any case, such measures should be executed in a non discriminatory manner in respect of comparable content, services and applications and must not result in the user not being able to access, use or distribute content, services and applications of his or her choice. Operators shall in any case respect the fundamental rights and freedoms of users and not give preferential treatment to their services or applications or of those of their partners. The above does not preclude that prioritisation, blocking and filtering can be activated upon express request by the end-user, provided that he can disable them at will.
Justification:
Network management practices can be beneficial to solve temporary congestion or exceptional situations, and operators should be able to deal with those short term and exceptional situations. But network management could also lead to discriminating against some technologies without a stringent technical justification. The amendment aims to preserve that the communication infrastructure remains as neutral as technically feasible (in a similar way to the Guidelines published in February 2002 by the Norwegian Post and Telecommunications Authority (NPT), Principle 3). This amendment also provides an implementation of the principles laid down by Article 32a of Directive 2002/22/EC adopted in first eading (Amendment 166) in the specific case of technical measures – and network management are technical measures – because they can either be totally neutral or considerably damaging to individual's and enterprise's freedom, as well as hindering some information society services by discriminating them. Recent cases of blocking of services because in competition with the services provided by network communication providers or their affiliates are eloquent of already present risks. This is the single most subtle area where users' rights can be jeopardized and where EU legislation must more clearly provide guidance to the network operators as to what is a technical measure and what instead is abusive and damaging to citizens and enterprises
Amendment 12
The following shall be added:
3b. Member States shall ensure that national regulatory authorities are able to require undertakings providing public communications networks to provide information regarding any network management practices and make them well publicised in an easily understandable and consistent way. Member States shall ensure that national regulatory authorities have all the powers necessary to investigate cases of undisclosed network management practices and/or cases in which such practices conflict with art. 22 point 3a and to take appropriate remedies. National regulatory authorities shall additionally ensure that there are tools available by which users can monitor and identify any problems created by network management practices in cases where disputes may arise.
Justification:
This amendment aims to restore Article 28 paragraph 2a of Directive 2002/22/EC adopted in first reading (Amendment 101) and to coordinate the language with the use of "network management" concepts, and to place the investigatory and regulatory powers provisions more close to the substantive provisions of citizens rights. As with Amendment [XXX] providing a new Article 22.3.a, the aim is to prevent that technical measures are put in place and conflict with user's rights and/or hinder information society's services by discriminating against some of them. The proposed Article introduces an overseeing power and duty upon the national regulatory authorities which reads directly on the obligations laid down by Article 22.3.
Amendment 13
The following article shall be added:
Article 32a
Access to content, services and applications
Member States shall ensure that any restrictions to the rights of users to access, distribute or use content, services, and applications, if such restrictions are necessary, shall be implemented by appropriate measures, in accordance with the principles of proportionality, effectiveness and dissuasiveness. These measures shall not have the effect of hindering the development of the information society, in compliance with Directive 2000/31/EC, and shall not conflict with the fundamental rights of citizens, including the right to privacy, the right to freedom of expression and the right to due process.
Justification:
The amendment restores Article 32a of Directive 2002/22/EC adopted in first reading (Amendment 166). The amendment aims to ensure that end-users of electronic communications services will be able to access content, services, and applications without being unduly restricted. It intends to strike the right balance between the right of end-users to freedom of expression, and their right to privacy and protection to personal data, and the rights and freedoms of others, including the right to the protection of intellectual property, and the protection of public safety and security.
Amendment 14
Paragraph 3 of Article 33 shall be - deleted -
Justification:
The amendment is line with Article 32a of Directive 2002/22/EC adopted in first reading (Amendment 166). Any mechanism for the purpose of the promotion of lawful content does not fall within the scope of Directive 2002/22/EC. Any restrictions to the rights of users to access content, services, and applications should be implemented only if they are absolutely necessary and are implemented by appropriate measures, in accordance with the principles of proportionality, non-discrimination, effectiveness and dissuasiveness. Such measures should not conflict with the fundamental rights of citizens, including the right to privacy, the right to freedom of expression and the right to due process.
Directive 2002/22/EC aims to protect users' right to use electronic communications services to access all content, services, and applications of their choice, and to provide the regulatory framework to facilitate such access recognised as a fundamental right by Community and national laws, including in particular Article 11 of the Charter of Fundamental Rights of the European Rights, without imposing unjustified and unnecessary restrictions to the right to such access.
Any mechanism for the purpose of the promotion of lawful content should fall solely within the scope of the relevant rules of Community and national and national substantive and procedural law, including Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society, and Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (Directive on electronic commerce), as well as rules of the Community and national law protecting public safety and security. Such mechanism should not hinder the development of information society, in compliance with the Directive on electronic commerce, and should preserve the fundamental rights of citizens to freedom of expression and information and their right to privacy.
