Just two mails sent by a spanish and a french MEP: No comment.

1 The spanish Toubon

Mail from Guardans.
****

Dear Colleagues,

I’m sorry to bother you with a collective email.

As it is happening more and more often when we have to decide on
anything related to the internet, you are receiving these days plenty of
emails regarding tomorrow’s vote on the telecomm package. I am convinced
you will reject that sort of pressure and threats, as you would do if
they were coming from fundamentalists of other sorts, or from some of
the business lobbies most of you critize so often. And vote whatever you
think is right, balanced and reasonable in the internet era. We may
disagree on some issues, but anybody lying about what the texts
submitted to vote really say, should not be taken into account.

In this context of serioussness, let me underline the importance of
rejecting Amendment 138, fwhich bears the signature of a long list of
very respectful colleagues, starting with Guy Bono.

There is a principle we should consider: Internet may require sometimes
different rules from those which apply to our squares and streets. But
what can be called the “internet world” cannot be a less safer place
than the phisical world we live in.

For whatever reasons, which is up to the signatories to explain, what
this amendment says is: no restriction whatsoever can exist in internet
to the “rights and freedoms” if it is not “previously” authorized by a
judge, with the only exception of criminal law, and this even in a
restrictive manner. If this was applied to our police forces in our
motorways and roads; to our school teachers and academic authorities at
schools and universities; to our urban planning authorities in our
cities and villages; to any of our state authorities in any field,and in
any level, what would the world look like? We would perhaps be under a
government by Judges, if that is possible. Judges are there to review
decisions, and to sanction unfair abuses of authority or power or
illegal acts. And, indeed, in certain cases, to suspend acts from the
competent authorities. But judges are NOT there to be permanentlyy
consulted by authorites before they do whatever the law allows them to
do!

There will be an oral Amendment, which will restrict this text to
“fundamental rights and freedoms”. If the oral amendment is accepted,
the text would make perhaps some sense. If that oral amendement is not
accepted or approved, please vote against ethe three parts of AM. 138.

Kindly, and respectfully yours

Ignasi Guardans, MEP

European Parliament
ASP 08G 152
60, rue Wiertz
B-1047 Brussels

2 The french Toubon

From: TOUBON Jacques
Sent: 23 September 2008 18:38
To: …
Cc: MEP-PPE-DE
Subject: In view of the group meeting: Telecom Package
Importance: High

Dear …

I would like to share with you my concern about the amendment 138 of
BONO and the oral amendment of Trautmann.

I consider that these amendments lead to:

* prevent effective sanctions against pedopornography online in
the name of the freedom of expression and information;
* introduce a distinction and a hierarchy between the different
categories of fundamental rights holders in privileging the ones of
end-users of electronic communications networks and services;
* Are contradictory with the directive 2000/31 on e-commerce.

I- Amendment BONO (138) and oral amendment of Mrs Trautmann and the
uses of pornography:

Applying the principle that end user should not be restricted on
behalf of his rights and freedom before a judicial authority, gives him
entire liberty to act as he wishes. This is the case if BONO “light” by
split vote in deleting reference to Article 11 – freedom of expression
and information and split vote deleting public policy, public security
or public morality will withdraw any restriction. Pedopornography, for
instance, will be allowed (no restriction on end user) and only the
judicial judge after a while would be authorized to prosecute the end
user. TRAUTMANN oral amendment is only replicating the same consequences.

For example, in France the judge gives a general mandate to
policemen to search for and punish pedopornographs. They do not wait
each time for “the prior ruling of the judicial authority”.

II- These amendments introduced an hierarchy between the different
fundamental rights holders:

In putting forward fundamental rights and freedoms of end-users
online, these amendments tend to make a hierarchy between the rights and
freedoms and to give the primacy to those of end-users. A directive
about electronic communications may not do that. International and
European legislations (Universal declaration of human rights, European
Charter of Human rights and European Convention on Human rights)
guarantee human rights to all citizens and not only to end-users. A
directive may not decrease the extent of the rights and freedoms of
other categories of fundamental rights holders.

Several articles of the European Charter of fundamental rights deal
with this matter:

* Article 20 (Everyone is equal before the law);
* Article 52 (on the extent of guaranteed rights);
* Article 53 on the level of protection;
* Article 54 on the Prohibition of abuse of rights [1] ;

Basically, they state that it is contrary to European conventions to
make a hierarchy between different categories of fundamental rights
holders. For instance the rights provided by article 17 have the same
value as the rights provided by article 11. Such amendments would lead
to jeopardize the implementation of certain rights in favour of others.

III- These amendments are in contradiction with the directive
2000/31 on e-commerce:

Indeed, this directive promotes out-of-court dispute settlement:

Article 14

Hosting

1. Where an information society service is provided that consists of
the storage of information provided by a recipient of the service,
Member States shall ensure that the service provider is not liable for
the information stored at the request of a recipient of the service, on
condition that:

(a) the provider does not have actual knowledge of illegal activity
or information and, as regards claims for damages, is not aware of facts
or circumstances from which the illegal activity or information is
apparent; or

(b) the provider, upon obtaining such knowledge or awareness, acts
expeditiously to remove or to disable access to the information.

2. Paragraph 1 shall not apply when the recipient of the service is
acting under the authority or the control of the provider.

3. This Article shall not affect the possibility for a court or
administrative authority, in accordance with Member States’ legal
systems, of requiring the service provider to terminate or prevent an
infringement, nor does it affect the possibility for Member States of
establishing procedures governing the removal or disabling of access to
information.

Article 17

Out-of-court dispute settlement

1. Member States shall ensure that, in the event of disagreement
between an information society service provider and the recipient of the
service, their legislation does not hamper the use of out-of-court
schemes, available under national law, for dispute settlement, including
appropriate electronic means.

2. Member States shall encourage bodies responsible for the
out-of-court settlement of, in particular, consumer disputes to operate
in a way which provides adequate procedural guarantees for the parties
concerned.

3. Member States shall encourage bodies responsible for out-of-court
dispute settlement to inform the Commission of the significant decisions
they take regarding information society services and to transmit any
other information on the practices, usages or customs relating to
electronic commerce.

Considering the elements above mentioned, I think that our group
should strongly oppose these amendments. I call you again to support the
amendments 132 (report Trautmann) and 179 (report Harbour) which are
based on the principle of peaceful dialogue instead of conflicts of rights.

Best regards,

Jacques Toubon

Annex:

Amendment Bono:

Proposal for a directive – amending act

Article 1 - point 8 - point e a (new)

Directive 2002/21/EC

Article 8 - paragraph 4 - point g a (new)

Text proposed by the Commission

Amendment

(ea) In paragraph 4, point (ga) is added:

“(ga) applying the principle that no restriction may be imposed on
the rights and freedoms of end-users, notably in accordance with Article
11 of the Charter of Fundamental Rights of the European Union on freedom
of expression and information, without a prior ruling by the judicial
authorities, except where dictated by force majeure or by the
requirements of preserving network integrity and security, and subject
to national provisions of criminal law imposed for reasons of public
policy, public security or public morality.”.

Or. {EN}en

Justification

The judicial authority is the guardian of freedoms. Except where
dictated by force majeure or by the requirements of preserving network
integrity and security, and subject to national criminal law
(particularly concerning the transmission of child pornography, racist
content, etc.) any restriction on the rights and freedoms of end users
may only be decided by the judicial authority.

Amendment Trautmann:

The rapporteur will move the following oral amendment to amendment 138:

(ga) applying the principle that no restrictions may be imposed on
the FUNDAMENTAL rights and freedoms of end-users, without prior ruling
by the judicial authorities

Amendment 132 Toubon/Hieronymi:

Proposal for a directive – amending act

Article 1 - point 8 - point e a (new

Directive 2002/21/EC

Article 8 - paragraph 4 - point g a (new)

Text proposed by the Commission

Amendment

(ea) In paragraph 4, point (ga) is added:

“(ga) promoting dialogue between undertakings providing electronic
communications services and networks and creative content industries in
order to foster joint-industry solutions, including codes of conduct.”

Amendment 179 Toubon/Mavrommatis tabled by the EPP:

[Proposal for a directive]( – amending act)

Article 2, point -7c new

Directive 2002/58/EC

Article 15 paragraph 1

[Text proposed by the Commission]

Amendment

(-7a) In article 15, paragraph 1 shall be replaced by the following:

1.Member States may adopt legislative measures to restrict the scope
of the rights and obligations provided for in Article 5, Article 6,
Article 8(1), (2), (3) and (4), and Article 9 of this Directive when
such restriction constitutes a necessary, appropriate and proportionate
measure within a democratic society to safeguard national security (i.e.
State security), defence, public security, the prevention,
investigation, detection and prosecution of criminal offences, of
unauthorised use of the electronic communication system , or the
protection of rights and freedom of others , as referred to in Article
13(1) of Directive 95/46/EC. To this end, Member States may, inter alia,
adopt legislative measures providing for the retention of data for a
limited period justified on the grounds laid down in this paragraph. All
the measures referred to in this paragraph shall be in accordance with
the general principles of Community law, including those referred to in
Article 6(1) and (2) of the Treaty on European Union.

[1] Nothing in this Charter shall be interpreted as implying any
right to engage in any activity or to perform any act aimed at the
destruction of any of the rights and freedoms recognised in this Charter
or at their limitation to a greater extent than is provided for herein.