============================================================
EDRi-gram
biweekly newsletter about digital civil rights in Europe
Number 9.4, 23 February 2011
============================================================
Contents
============================================================
1. Hungary amends its controversial Media Law
2. EESC condemns body scanners as a breach of fundamental rights
3. The French supreme court recognizes hosting status of Web 2.0 services
4. The US pressures the EU to pass ACTA before the end of 2011
5. German law on Internet blocking challenged in Constitutional Court
6. Polish civil society stirs up debate on Internet freedom
7. France: Loppsi 2 adopted - Internet filtering without court order
8. Is the EU going to have a new common patent law?
9. European Privacy & Human Rights 2010
10. ENDitorial: Internet blocking - EP opts for leadership over populism
11. Recommended Action
12. Recommended Reading
13. Agenda
14. About
============================================================
1. Hungary amends its controversial Media Law
============================================================
As a result of the concern expressed by the European Commission and
following the meetings with the Commission's experts on 7 and 15 February
2011, the Hungarian authorities have decided to amend their new
controversial media legislation.
The main issues of concern were related to four issues:
1. The disproportionate application of rules on balanced information due to
the lack of limiting criteria, which was considered a breach of the
Audiovisual Media Services Directive (AVMS), the EU Treaty rules on the
establishment and provision of services and of Article 11 of the EU Charter
of Fundamental Rights concerning the fundamental freedom of expression and
information. The amendment brought by the Hungarian government is that
requirements regarding balanced information will be limited to broadcasting,
being no longer applied for on-demand media services.
2. The application of fines to broadcasters legally established and
authorised in other Member States which could breach the "country of origin"
principle established by the AVMS Directive, according to which, audiovisual
media service providers are subject to the regulations in their country of
origin only. The Hungarian authorities agreed to amend this by removing the
ability to fine legally established broadcasters in other EU countries.
3. The rules on registration and authorisation of media service providers
which apply to on-demand media services, press products and ancillary media
services could imply that they are required to register before they are
allowed to provide services in Hungary and are thus subject to an
authorisation scheme. These provisions could create an unjustified
restriction of the Treaty rules on freedom of establishment.
The amendment agreed upon clarifies that on-demand audiovisual media service
providers, media product publishers and ancillary media service providers
would have to register within 60 days after having begun providing
their services, meaning that these providers established in Hungary
and in other Member States would no longer be subject to prior authorisation
by the Hungarian authorities.
4. The law dictated that media content may not "cause offence", even by
implication, to individuals, minorities or majorities and which apply to all
media content providers, including those established in other EU countries.
These provisions have been limited, for all media content providers, to
situations of incitement to hatred or discrimination.
"I am very pleased that the Hungarian authorities have agreed to amend their
Media Law to ensure that it complies with the aspects of EU law that we have
raised, including the Charter of Fundamental Rights", stated Neelie Kroes,
EC Vice-President and European Digital Agenda Commissioner who added that
the European Commission will continue to closely monitor the adoption and
implementation of the amendments.
However, the opponents of the Hungarian media law are still sceptical and
the debate in the European Parliament on 16 February also raised issues
that had not been addressed by of the Hungarian authorities, such as the
political control over the country's media authority.
According to Martin Schulz EMP (Germany), the Socialists & Democrats group
leader, "At first glance, a series of changes, some of technical nature have
taken place. But other important matters, such as the composition of Media
Council, are outstanding. (...) We still need to analyse the text carefully.
Media freedom is an issue of central importance to the S&D group and we will
do everything in our power to protect it."
During the meeting of the European Parliament's group leaders (with
exception of the EPP) on 17 February, the decision was taken to postpone the
vote on the Hungarian media law but not withdraw a resolution on the matter.
"Whilst it is a positive sign that the Hungarian Government have indicated a
willingness to modify the four areas of concern outlined by the Commission,
Liberals and Democrats remain concerned about other aspects of the Hungarian
law which place huge powers of censorship in the hands of governing party
appointees and reveal a lack of adequate protection for journalists' sources
as well as insufficient provision for judicial review or appeal," said
Renate Weber (PNL, Romania) ALDE coordinator in the Civil Liberties
committee and spokesperson on the Hungarian media law who added that the
Hungarian Government "should consider a more fundamental overhaul of the law
in line with the recommendations of the OSCE."
Media: Commission Vice-President Kroes welcomes amendments to Hungarian
Media Law (16.02.2011)
http://europa.eu/rapid/pressReleasesAction.do?reference=MEMO/11/89&format=HTML&aged=0&language=EN&guiLanguage=en
Brussels happy with Hungary's pledges on media law (17.02.2011)
http://www.euractiv.com/en/future-eu/brussels-happy-hungarys-pledges-media-l...
Press Release Changes by Hungarian Parliament to media law must be closely
monitored (17.02.2011)
http://www.alde.eu/press/press-and-release-news/press-release/article/change...
Hungarian media law: Proposed amendments ignore core provisions restricting
media freedom (16.02.2011)
http://www.greens-efa.eu/cms/pressreleases/dok/371/371430.hungarian_media_la...
EDRi-gram: EU institutions want clarifications form Hungary on its media
legislation (26.01.2011)
http://www.edri.org/edrigram/number9.2/hungary-media-legislation-2010
============================================================
2. EESC condemns body scanners as a breach of fundamental rights
============================================================
On 16 February 2011, the European Economic and Social Committee (EESC)
issued its opinion on the use of body scanners in EU airports.
The EESC has opposed the eventual adoption of any measures that would
introduce body scanners on an EU-wide level, and feel that the Commission
Communication on the use of security scanners does not respect three basic
criteria: necessity, proportionality and legality.
The document also criticises the Commission for changing the term "body
scanners" to "security scanners", and outlines four central critiques with
regard to the Commission Communication, namely, proportionality, fundamental
rights, health risks and passenger rights .
The document urges the Commission to produce a thorough proportionality test
in order to determine the necessity of their implementation versus
alternative measures. The EESC suggests that the Commission seriously
consider alternatives and that it might be better to wait for more precise
and less intrusive technology which can recognise security hazards.
The EESC objects to the infringement of fundamental rights as a trade-off
for public security. The costs to fundamental rights are three fold:
personal privacy, data privacy and the right to human dignity. To further
underline the inherent risks, the document cites a case in a Florida airport
where 35 000 naked scans were recorded by officers and distributed on the
Internet.
As there exists no code of best practices or conclusive proof that these
scanners do not pose health risks to individuals, the EESC requests that the
Commission provide a thorough scientific examination proving that passengers
and personnel who frequently fly will not be exposed to any health risks.
The Committee also reminded the Commission that its Communication did not
include guarantees of effective recourse for passengers and personnel
undergoing the scans, and also failed to include guarantees that passengers
will not obliged to undergo body scanning, ensuring individuals reserve the
right to 'opt out' while not suffering longer wait times, more intrusive
pat-downs, or be prevented from flying.
Body scanners are currently in a trial period in the EU, where
approximately 5 or 6 Member States have deployed the technology, including
the UK, Finland, the Netherlands, France and Italy (according to a press
release from 15 June 2010).
The Commission is convinced that a more harmonised approach to body scanners
is needed throughout the EU, thus it is likely that an EU legal framework on
the use of "security scanners" at EU airports will be produced sometime in
the near future.
EESC Opinion on Use of Security Scanners at EU airports (16-17.02.2011)
http://www.eesc.europa.eu/?i=portal.en.opinions.15111
Body scanners? Not yet, says the EESC (17.02.2011)
http://europa.eu/rapid/pressReleasesAction.do?reference=CES/11/20&format=HTML&aged=0&language=EN&guiLanguage=en
Commission communication on body scanners (15.06.2010)
http://ec.europa.eu/transport/air/security/doc/com2010_311_security_scanners...
Commission Q&A on "security scanners" (15.06.2010)
http://europa.eu/rapid/pressReleasesAction.do?reference=MEMO/10/261&format=HTML&aged=0&language=EN&guiLanguage=en
EU aviation security FAQ (15.02.2010)
http://europa.eu/rapid/pressReleasesAction.do?reference=MEMO/10/34
Technologies for the Use of Images: Automated Processes of Identification,
Behavioural Analysis and Risk Detection Control at the Airports by Douwe
Korff (06.2010)
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1673772
Presentation by Douwe Korff (EDRi-member FIPR), at EESC Hearing "Use of
Security Scanners at EU Airports" (11.01.2011)
http://www.eesc.europa.eu/resources/docs/korff_20110111_security-scanners.pd...
(Contribution by Raegan MacDonald - EDRi)
============================================================
3. The French supreme court recognizes hosting status of Web 2.0 services
============================================================
On 17 February 2011 the French Court of Cassation recognized the hosting
status of Dailymotion and Fuzz.fr. The court also confirmed, in relation to
the Amen website case, that the judges had to verify that the content
withdrawal requests observed the requirements of LCEN (loi pour la confiance
dans l'iconomie numirique - French implementation of the EU E-commerce
Directive) before condemning a hosting site that had not withdrawn promptly
the notified content.
The decisions of the Court of Cassation establish clearly the boundary
between a content hosting site and a web service editor. In the Dailymotion
case, it comes to confirm the decision of the French Court of Appeal of May
2009 which overturned a 2007 court decision that considered the hosting site
liable for the content posted online on its platform. Moreover, the site had
responded immediately after having been notified that it was hosting illegal
content.
The Court of Cassation also overturned the decision against Fuzz.fr in
the case introduced by actor Olivier Martinez. In 2008, a French court
decided that the owner of the website had an editorial responsibility, even
if the website was a digg-like service (where the users can vote which news
comes on first) and forced him to pay 1000 euro in damages for infringing
the actor's privacy and an additional 1500 euro in legal fees. The Court of
Cassation considered fuzz.fr a hosting site in terms of LCEN and therefore
not liable for the content posted on it.
An important clarification in relation both to Dailymotion and the Amen
hosting site is the necessity to correctly formulate the requests for
content withdrawal by taking all actions stipulated by the law.
According to LCEN, the request to withdraw content must cover a
series of elements including the notification date, the identification
data of the notifying person (either natural or legal), the identification
data of the addressee, the description of the litigious facts and precise
location, the reasons for the withdrawal, including legal basis and
justification, , a copy of the correspondence addressed to the author or
editor of the litigious actions asking for their interruption, withdrawal or
modification, or the justification of the fact that the author or editor
could not be contacted.
The subsidiarity principle is thus observed, meaning that a hosting site
cannot be required to withdraw content before proving that the author of the
content has been first contacted and required to withdraw the respective
content. This could be the end of mass withdrawals of files without any
previous procedure.
However, the Legal Commission of the Senate seems to want to change the
rules and on 15 February 2011 it proposed the creation of a new status
between hoster and editor that will have filtering and surveillance
obligations.
Dailymotion and Fuzz recognised as hosters by the Cassation Court (only in
French, 17.02.2011)
http://www.01net.com/www.01net.com/editorial/528466/dailymotion-et-fuzz-reco...
The Cassation Court saves Fuzz.fr service as well (only in French,
18.02.2011)
http://www.numerama.com/magazine/18104-la-cour-de-cassation-sauve-aussi-le-s...
The Cassation Court protects the hosting status of Dailymotion. Thanks
Hadopi ? (only in French, 17.02.2011)
http://www.numerama.com/magazine/18099-la-cour-de-cassation-protege-le-statu...
The assignees will not be able to withdraw mass contents (only in French,
17.02.2011)
http://www.numerama.com/magazine/18098-les-ayants-droit-ne-pourront-plus-fai...
The Senate proposes the creation of web service editor status (only in
French, (16.02.2011)
http://www.journaldunet.com/ebusiness/le-net/statut-d-editeur-de-services-we...
EDRi-gram: French courts give clear decisions for hosted content
(20.05.2009)
http://www.edri.org/edri-gram/number7.10/france-decisions-hosting
============================================================
4. The US pressures the EU to pass ACTA before the end of 2011
============================================================
The US government has expressed its eagerness to see ACTA passed by the
European Parliament this year. The controversial treaty allows governments
to "order an online service provider to disclose (...) information
sufficient to identify a subscriber whose account was allegedly used for
infringement (...) of trademark or copyright or related rights
infringement."
Pressures from the US are expected to increase in the next months, having in
view that there is the possibility that the European Parliament strikes down
the agreement which means that talks would start again from the beginning.
Based on a recent study issued by legal informatics experts from the German
University in Hannover, ACTA raises a series of problems in complying with
EU legislation and therefore the report advises MEPs to strike the act
down or significantly change it.
Hence, four MEPs sent on 15 February 2011 written questions to the EU
Commission asking whether it was aware of the negative legal opinion and
how it intended to deal with it. One of the issues raised by the MEPs was
the different formulations on the level of damages for intellectual property
infringements. Another aspect is related to how the new measures targeting
counterfeit products, but also copyright and trademark infringements, will
avoid impeding the legal movement of medicines.
The atmosphere is already tense as recently, La Quadrature du Net has
obtained from WikiLeaks exclusive access to diplomatic cables revealing
pressure put by the US government on several European governments,
especially in Spain, for the adoption of harsh copyright enforcement laws.
The US Embassy cables refer to the EU Telecoms Package in the context of
copyright, expressing its approval for cutting off Internet access without
the necessity of a court order, as well as for the French three-strikes
system and similar measures adopted in the UK.
They also show the main role of the US in the initiation of ACTA, the stakes
involved, the debates related to the participation of developing countries,
as well as the evolution of the position of the European Union during the
negotiations. Although the EU Commission has strongly criticised ACTA,
several EU national governments have negotiated the treaty behind closed
doors.
On the other hand, the European Parliament has, in its turn, concluded a
free trade agreement (FTA) with South Korea that is not far off from ACTA,
including strong provisions on intellectual property rights protection.
The FTA with Korea, which will come into effect on 1 July 2011, includes,
just like ACTA, excessive criminal liability provisions for online
intellectual property infringements.
As the rapporteur for the Industry Committee of the Parliament, Daniel
Caspary pointed out, the level of IP protection standards in the EU-Korea
FTA includes not only copyright, related rights and trademarks, but also
designs, services marks, layout designs of integrated circuits, geographical
indications, plant varieties and the "protection of undisclosed
information".
The treaty stipulates other measures including searches and seizures at the
request of rights holders and gives broadcasters the right to prohibit
re-broadcasting, fixation, and communication to the public of their TV
broadcasts for a fee.
According to Green party member Jan Philipp Albrecht, the FTA is similar to
ACTA as the information about the provisions of the agreement were
kept secret before the it was signed by the parties involved.
US keen for EU to adopt controversial anti-counterfeiting treaty
(17.02.2011)
http://euobserver.com/9/31827/?rk=1
Anti-Counterfeiting Trade Agreement (3.12.2010)
http://www.dfat.gov.au/trade/acta/Final-ACTA-text-following-legal-verificati...
Stronger IP Rights In EU-Korea FTA: Precedent For Future FTAs? (20.02.2011)
http://www.ip-watch.org/weblog/2011/02/20/stronger-ip-rights-granted-in-eu-k...
WikiLeaks Cables Shine Light on ACTA History (3.02.2010)
http://www.laquadrature.net/en/wikileaks-cables-shine-light-on-acta-history
Wikileaks publishes Acta cables (4.02.2011)
http://www.zdnet.co.uk/blogs/communication-breakdown-10000030/wikileaks-publ...
Opinion of European Academics on ACTA (11.02.2011)
http://www.iri.uni-hannover.de/tl_files/pdf/ACTA_opinion_110211_DH2.pdf
EDRi-gram: ENDitorial: ACTA endgame - The devil is in the detail (8.09.2010)
http://www.edri.org/edrigram/number8.17/acta-devil--in-details
============================================================
5. German law on Internet blocking challenged in Constitutional Court
============================================================
On 22 February 2011 the German Working Group against Internet
Blocking and Censorship (AK Zensur) submitted their complaint against
the German law on Internet blocking to Germany's Constitutional Court.
The law is directed against online child abuse material and had come
into force on 23 February 2010, setting a one-year deadline for the
complaint.
AK Zensur and many others had fiercely opposed the law and announced
that a complaint would be filed when the law was enacted by Parliament
in June 2009. An online petition against the law collected 134 000
signatures in May and June, the highest number ever achieved at the
German Parliament's online petitions system. A curious situation emerged
when the government changed after the elections in September 2009,
taking the liberal party FDP into power in a coalition with the
conservative CDU/CSU. The FDP had opposed the blocking law in their
election campaign, and before the law came into force, it was agreed
that it would not be fully implemented. In a legally dubious move, a
"non-application directive" by the Interior minister stipulated that
initially, only take-down was to be attempted, and the governing parties
agreed that a review would be held about a year later.
This created something of a legal absurdity as the consequences of the
law are not fully felt at the moment when the deadline to complain is
expiring. But AK Zensur and its lawyers are confident that even now,
many aspects of the law are in clear violation of the German
Constitution, and several experts had voiced similar concerns at a
parliamentary hearing before the law was enacted. While political
support for the ill-fated law has widely diminished, the governing
parties have not found the will to abolish it in a new Parliamentary act.
AK Zensur is hopeful that with its complaint, it will be able to do
the politicians' homework for them. A website collecting signatures to
support the complaint in the political debate will be started soon.
German press release: German Free Speech Working Party issues constitutional
complaint against censorship law (only in German, 23.02.2011)
http://ak-zensur.de/2011/02/verfassungsbeschwerde.html
German Free Speech Working Party issues constitutional complaint against
censorship law (23.02.2011)
http://ak-zensur.de/2011/02/constitutional-complaint.html
EDRi-gram: Germany's President signs an Internet bill against his own
government (24.02.2010)
http://www.edri.org/edrigram/number8.4/german-president-adopts-internet-chil...
(Contribution by Sebastian Lisken)
============================================================
6. Polish civil society stirs up debate on Internet freedom
============================================================
The Polish chapter in the European debate on whether Internet blocking can
be conceived as a measure in fighting the dissemination of child abuse
images has finally been opened. This is due to the quite successful
campaign that EDRi-member Panoptykon Foundation, supported by the open
source movement and Internet Society Poland, has been running over last few
weeks.
It has long been unclear what position the government will take with regard
to the Directive on combating sexual abuse, sexual exploitation of
children and child pornography. The Polish representative in the Council
refrained from taking a firm standpoint, which made us believe
that the government - mindful of civil society's likely outrage - is
playing hide and seek, hoping that the Directive will be adopted with
the silent approval of Poland. Provoked by this game, back in November, we
managed to trigger some interest in this topic in two leading daily
newspapers. Right after the first article describing the alleged
tactic of the Polish government was published, the spokesperson of the
Ministry of Justice confirmed that the government "of course, supports
the Directive", including the concept of obligatory Internet blocking.
This position was made very clear at the JHA meeting on 3 December 2010.
To us it clearly meant that the government was trying to do some policy
laundering. Almost exactly a year ago, - Polish Prime
Minister Donald Tusk, in a public debate with NGOs and Internet activists,
acknowledged that blocking Internet sites is a flawed measure and
should not be applied. Moreover, he promised that any future plans to
introduce legal measures affecting Internet freedom would involve
consultation with civil society. The present policy and the way it has been
carried out so far clearly contradicts both promises.
In an attempt to draw more attention to what is happening in Brussels
with the support of our government, Panoptykon organised a public debate
under the auspices of Polish Ombudsman, Prof. Irena Lipowicz which took
place on 10 February 2011. The discussion panel was composed of
representatives of the Ministry of Justice and four foundations representing
both sides of the debate: Panoptykon, Kidprotect.pl, Safe Cyberspace and
Nobody's Children. The audience consisted mainly of journalists, academic
society representatives and technologically minded individuals.
While Panoptykon argued that there was no collision between protecting
children and Internet freedom because child abuse images can be effectively
removed and therefore do not need to be blocked, our opponents claimed the
opposite, on the grounds that international cooperation did not function
well enough. The debate revolved around the following issues: what are
the technical possibilities of removing illegal content; how to ensure both
fast reaction and due process; what are the challenges of international
cooperation; how can we prove that blocking tends to be used instead of and
not in addition to fighting crimes against children; how blocking can
disturb pending police investigations; how big the problem of child abuse
images on-line really is; and what role can the Internet community play in
addressing the problem.
The Government's representative, Tomasz Darkowski, argued in
favour of web blocking. Mr Darkowski stressed that the Directive
should, in the first place, prevent Internet users from accidental and
unwanted contact with child abuse images. He also expressed a strong
belief that web blocking would remain strictly to child abuse
images and there were no reasons to worry about possibilities of
extending blocking to other types of content. This claim is all the
more astonishing when one can already hear some politicians suggesting
that hate speech and illegal gambling sites should be blocked. Polish
experience clearly shows that it does not take a lot to change an
existing law, especially in order to make it more radical.
In the end, the Ombudsman had a voice. She expressed her astonishment
with the hot atmosphere of the meeting caused by the huge societal interest
in the issue of website blocking. Prof. Lipowicz called in for more evidence
and analysis to support our claims. It was also clear that further
discussions are needed - first to explain the technical aspects of
blocking and the second to analyse the risk of extending blocking to
other types of "unwanted" content. The office of the Ombudsman is committed
to helping us continue the debate. In the meantime, we are collecting
evidence and analyses requested by the Ombudsman (the action called "Respond
the Ombudsman") and preparing an electronic publication that will summarise
the debate. It will be published on 10 March 2011.
Finally, together with five other organisations, Panoptykon has sent an open
letter to the Prime Minister calling for a meeting "a year after". We want a
serious discussion on the future of Internet freedom in Poland, which seems
threatened not only by the blocking proposal. There are at least four other
controversial and pending areas of regulation, which need to be explored:
data retention, content liability, nonlinear audiovisual services and the
implementation of the Telecoms Package. We hope that the Prime Minister will
accept our invitation and a working meeting with the government will
happen before 15 March.
With regard to Internet blocking, we hope to hear from the
Prime Minister the same words we heard from Woody Allen's
character, quantum physics genius Boris Yellnikoff: "However, as only
a great mind can do, I've reassessed... my... position, and uh,
changed my mind."
Open letter of Polish NGOs to the Prime Minister(only in Polish)
http://www.panoptykon.org/content/rok-po-nadal-chcemy-rozmawia-na-temat-woln...
Report on the position of Polish government in the Council (only in Polish,
03.12.2010)
http://www.panoptykon.org/content/polska-popiera-dyrektyw-otwieraj-c-drog-do...
Reports from the public debate on Internet blocking (+video)(only in Polish)
http://www.panoptykon.org/content/relacje-z-debaty-blokowanie-stron-internet...
Action "Respond the Ombudsman" (only in Polish)
http://www.panoptykon.org/content/odpowiadamy-rzecznik-praw-obywatelskich-pr...
(Contribution by Katarzyna Szymielewicz - EDRi-member Panoptykon Foundation,
Poland)
============================================================
7. France: Loppsi 2 adopted - Internet filtering without court order
============================================================
The French so-called Loppsi 2 draft law was adopted on 8 February 2011 by
the National Assembly as well as by the Senate without modifications, thus
allowing for the blocking of Internet access of a site deemed as having
"obvious" child pornographic content, without a court order. The text is
challenged by the Constitutional Court that will to decide whether the
new provisions are constitutional or not.
The draft law also allows for the installation of spyware by the police and
reinforces video-surveillance by the use of electronic bracelets.
Following its adoption, the opposition has filed an appeal against the law
to the Constitutional Council, showing concerns that the draft law gives
authorities "obvious inappropriate means" without "providing enough
guarantees against the eventual damages to the freedom of expression".
La Quadrature du Net has recently sent a memo to the Council asking for the
rejection of the Internet filtering as being against the Constitution,
inefficient and disproportionate. The group believes the law is a Trojan
horse which, under false pretences, will legitimise Internet censorship.
There will be no control over the way the filtering techniques will be set
up and, as the blacklist of websites to be filtered will be kept secret, it
will also be impossible to file complaints against filtering actions.
CFE-CGC professional unions as well as Unsa-Tilicoms union from France
Tilicom-Orange believe this is "a festival of incompetence, where, in the
name of overall security, this mixing-all text undermines fundamental
principles, especially in relation to the Internet, with the announced
blocking of the sites in the name of the fight against child pornography".
The opposition refers Loppsi 2 to the Constitutional Council (only in
French, 15.02.2011)
http://www.01net.com/www.01net.com/editorial/528388/lopposition-saisit-le-co...
French LOPPSI Bill Adopted: The Internet under Control? (9.02.2011)
http://www.laquadrature.net/en/french-loppsi-bill-adopted-the-internet-under...
The administrative filtering of the net is contrary to the French
Constitution (only in French, 02.2011)
http://www.laquadrature.net/files/20110214_La%20Quadrature%20du%20Net_Amicus...
EDRi-gram: French law Loppsi 2 adopted by the General Assembly (12.01.2011)
http://www.edri.org/edrigram/number9.1/loppsi-2-adopted-assembly
============================================================
8. Is the EU going to have a new common patent law?
============================================================
Based on a recommendation of the Committee on Legal Affairs, the European
Parliament approved on 15 February 2011 the use of the enhanced co-operation
procedure to create a unitary patent system in the EU, following the
request made by 12 Member States in December 2010.
Presently, there are national patents coexisting with a European patent in a
complicated and fragmented system which implies that the patent holders must
choose the countries where they want patent protection. Also, Member
States may impose additional requirements and the European patents are only
enforced by national laws. The expenses involved are also very high because
the current system requires the translation into the official language of
every country in which patent protection is sought. According to the
European Commission, a European patent validated in 13 countries can cost up
to 18 000 euro, more than half of which on translation fees.
Attempts have been made during the last year to get a unified system but
they have failed mostly due to translation issues. In 2010, Spain and
Italy raised objections to the EU plans to allow EU patents to be printed in
any of the three EU official languages: English, French or German. The
enhanced co-operation procedure allows a group of EU nations to use EU
government bodies to create a new system when unanimous agreement cannot be
found. Other countries can opt-in to the new rules later on. Under the
Lisbon Treaty a minimum of nine Member States is enough for this procedure.
The Member States, having initiated the proposal, believe a unitary patent
system in EU will make things cheaper and easier, will ensure equal access
to all inventors within the EU and will simplify the handling of
infringements. .
The enhanced co-operation proposal is still to be examined by the
Competitiveness Council on 10 March 2011. If approved by the Council as
well, the Commission will have to present two proposals, one on the language
regime (consultation procedure) and the other establishing the single patent
(co-decision procedure).
However, a key legal opinion by the European Court of Justice is expected at
the end of this month regarding the proposed "enhanced cooperation".
According to documents published until now, the Court might find the
proposal in conflict with the EU treaties, which will delay the process and
require changes to the proposal.
Free Software Foundation Europe (FSFE) has expressed concerns that the
European Parliament might lose its legislative competence regarding patents,
which will be controlled by the European Patent Organisation (EPO). A
conflict of interest would then be created, the EPO being responsible both
for awarding patents and for defining what is patentable.
FSFE also believes that "software patents hurt innovation and are an
unnecessary burden on European software developers. (...) Legislators need
to take charge and make sure the patent system contributes to the public
good. As the European Patent Organisation has acknowledged, this is a
decision that cannot be left to bureaucrats and the judiciary."
Spain and Italy might also use the courts to further postpone the process.
Single patent co-operation plan gets committee go-ahead (27.01.2011)
http://www.europarl.europa.eu/en/pressroom/content/20110124IPR12359/html/Sin...
MEPs support vanguard group on EU patent (15.02.2011)
http://euobserver.com/19/31809/?rk=1
New pan-EU patent plan will be adopted by 25 of EU's 27 countries, says
Commission (16.02.2011)
http://www.out-law.com//default.aspx?page=11782
European Patent: FSFE urges European Parliament to wait for legal advice
(9.02.2011)
http://fsfe.org/news/2011/news-20110209-01.en.html
Draft European Parliament Legislative Resolution on the proposal for a
Council decision authorising enhanced cooperation in the area of the
creation of unitary patent protection (2.02.2011)
http://www.europarl.europa.eu/sides/getDoc.do?type=REPORT&reference=A7-2011-0021&language=EN
============================================================
9. European Privacy & Human Rights 2010
============================================================
On Data Protection Day, 28 January 2011, Privacy International, the Center
for Media and Communication Studies of the Central European University and
the Electronic Privacy Information Center, released the European Privacy &
Human Rights 2010 (EPHR) report. The survey reviews the landscape of
national privacy and data protection laws and regulations, in addition to
other laws, cases and recent developments, such as European NGOs' advocacy
activities, that have had an impact on privacy in Europe in the last two
years. The research field covers jurisdictions of all 27 EU Member States,
two EFTA countries (Norway and Switzerland), three EU accession candidate
states (Croatia, Macedonia and Turkey), and the EU itself as a jurisdiction.
Apart from the country-by-country analysis in 33 reports, the survey also
provides a comparative legal and policy analysis of major privacy topics and
a section on key developments country by country. A privacy ranking offers
a bird's-eye view of all major developments, and summarizes them
by grading the state of privacy in each state, from the ones which
"consistently uphold human rights standards" (best grade) to the ones where
"endemic surveillance" prevails (lowest grade), going through the states
that have "adequate safeguards against abuse" (satisfactory mark), present a
"systemic failure to uphold safeguards" (insufficient mark), or show signs
of "extensive surveillance" (very poor grade). Key findings then list
countries on a grading scale, such as the "good" ones ("European democracies
(...) in good health", with a "majority of countries having constitutional
protections") or the ones where "heroic" policy advocacy, campaigns or
protests that took place that slowed down or prevented privacy intrusions or
government surveillance.
A special section in the report outlines European NGOs' advocacy work in
each country. Several of EDRi's NGO members have directly contributed to
the success of those advocacy efforts in their respective countries.
Each country report is available in English and translated into the
country's official language(s). Another section provides an extensive list
of privacy resources, country by country.
The EPHR report builds upon the legacy of EPIC & Privacy International's
Privacy & Human Rights survey, in which more than 300 privacy experts from
all over the world have already participated for over a decade, making
this survey one of the world's most comprehensive report on privacy and
data protection.
The "EPHR 2010" report is part of a broader project that comprises, apart
from the publication of the report itself, two other action areas that will
be fully developed over the next six months: the dissemination of the report
on various online platforms, in particular mobile phones, so that people
around Europe can learn, in their own national language, about privacy
developments in their country; but also the development of awareness-raising
campaigns, including three "games" that teach people how to decode web
access logs and IP addresses and tie them to a unique individual, or figure
out which countries' servers their e-mails may have gone through, and may
possibly have been intercepted.
In addition to the research and production team, made up of people from the
Center for Media and Communication Studies at the Central European
University and Privacy International, more than 90 privacy and data
protection experts (privacy advocates, academics, lawyers and policy
experts) from 32 countries all over Europe, contributed with updates from
their respective countires. The European Commission funded the EPHR project
through its "Fundamental Rights and Citizenship Program (2007-2013)".
The European Privacy & Human Rights 2010 report
https://www.privacyinternational.org/ephr/
The introductory video
https://www.privacyinternational.org/data/
The "EPHR" project
http://www.cmcs.ceu.hu/research/privacy-and-freedoms
Short presentation of the survey (31.01.2011)
http://blog.cedriclaurant.org/2011/01/31/european_privacy_and_human_rights/
(Contribution by Cedric Laurant - observer at EDRi)
============================================================
10. ENDitorial: Internet blocking - EP opts for leadership over populism
============================================================
On 14 February 2011, the Civil Liberties Committee of the European
Parliament (EP) voted on the European Commission's proposal on web blocking.
The European Commission had proposed mandatory EU-wide blocking and limited
safeguards. The approach is populist, simplistic and, by giving Member
States the option to take cosmetic measures to hide their inaction,
profoundly dangerous and counterproductive.
The Committee addressed the issue in numerous debates, from September 2009
until now and held a two-day hearing on the subject to get views from
international institutions, police and law enforcement bodies, child rights
organisations and EDRi, as the sole digital rights voice in the event. As a
result of this extensive analysis, Parliamentarians increasing came to the
conclusion that the issue was more complex and sensitive than it first
appeared.
As a result, under the leadership of rapporteur Roberta Angelilli (EPP,
Italy), the Parliament voted for a text which moved the focus away from
technically inefficient measures and towards concrete tools to fight crimes
against children. Despite bizarre and desperate claims from some quarters
that this approach was somehow paedophile-friendly, the Committee
courageously rejected simplistic lobbying and took a leadership role -
pushing for effective policy across the European Union.
The text also harmonises the approach to existing European Union and
European Convention on Human Rights obligations with regard to restrictions
on communication. This will enable more coherent, predictable and
proportionate approaches in the future on a European level.
The Parliament text of Article 21 and Recital 13 prioritises concrete
measures aimed at addressing the existence of the illegal content on
websites, investigating the actual crimes and the criminals committing them,
as well as rescuing the victims.
It does this specifically by placing the emphasis on:
- removal at source: This measure undermines the same
existence of illegal material, avoiding "all" risks of re-victimisation,
while allowing Internet providers to keep record of content to facilitate
police's criminal investigation and victim identification;
- international cooperation: It is particularly important
to remove the systemic problems in communication and cooperation with third
countries' authorities that lead to illegal content in websites hosted
abroad not being dealt with expeditiously (this cooperation could include,
for example, the setting up of single points of contact for competent
authorities);
- European annual reporting on removal activities: This
will help identify individual success and failures of Member States at a
national and international level, to disseminate best practices and ensure
maximum efforts to prosecute criminals and identify victims.
The Parliament's text will serve to clarify and harmonise the EU's approach
to existing legal obligations on restrictions to communications. In
particular:
- The least restrictive alternative is prioritised, namely, the deletion of
websites. Only when this is impossible can a more restrictive method (such
as blocking) be considered.
- In line with the European Convention on Human Rights,
alternative measures for removal at source (such as blocking) must be
"necessary" (ie, the measure must be effective and no other measure can be
reasonably available taking into account technical and economic feasibility)
- Respecting existing case law of the European Court of
Human Rights, restrictions must be imposed in a predictable (according to
law), transparent (ie, the measure should be based on relevant factors or
sufficient evidence) and proportionate (ie, the negative effects of a
measure should be counter-balanced by its benefits in terms of a legitimate
public policy objective) manner.
Proposal for a Directive of the European Parliament and of the Council on
combating the sexual abuse, sexual exploitation of children and child
pornography, repealing Framework Decision 2004/68/JHA
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2010:0094:FIN:EN:P...
"Impact assessment": Accompanying document to the Proposal for a Council
Framework Decision on combating the sexual abuse, sexual exploitation of
children and child pornography, repealing Framework Decision 2004/68/JHA -
Impact assessment {COM(2009)135} {SEC(2009)356}
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:52009SC0355:EN:N...
Commission official explains the Commission's research
http://www.youtube.com/watch?v=EpFpoXIdRQc
EDRi's blocking booklet
http://www.edri.org/files/blocking_booklet.pdf
EDRi-gram: Web blocking discussions in European Parliament reach critical
stage (12.01.2011)
http://www.edri.org/edrigram/number9.1/web-blocking-campaign
(contribution by Joe McNamee - EDRi)
============================================================
11. Recommended Action
============================================================
The Council of Europe's Expert Committee on New Media launched a
consultation on its draft recommendations on search engines and social
networking services, including guidelines
Deadline for sending your comments:18 March 2011
http://www.coe.int/t/dghl/standardsetting/media/
Privacy International: Petition to Council of Europe on government use of
citizens biometrics
https://www.privacyinternational.org/article/petition-council-europe-governm...
============================================================
12. Recommended Reading
============================================================
European DPAs adopt opinion on RFID Privacy Impact Assessment Framework
http://ec.europa.eu/justice/policies/privacy/workinggroup/wpdocs/2011_en.htm
ENISA Report: 'Bittersweet cookies': new types of 'cookies' raise online
security & privacy concerns
http://www.enisa.europa.eu/media/press-releases/2018bittersweet-cookies2019-...
Freedom in the days of the Internet
http://www.thinkingeurope.eu/images/dbimages/docs/CESFreedominDaysofInternet...
============================================================
13. Agenda
============================================================
23-28 February 2011, Gosier, Guadeloupe, France
ICDS 2011- 5th International Conference on Digital Society
http://www.iaria.org/conferences2011/ICDS11.html
24-25 February 2011, Berlin, Germany
The First OAPEN Conference
http://meetings.copernicus.org/oapen2011/
9 March 2011, Amsterdam, The Netherlands
Big Brother Awards NL
https://www.bigbrotherawards.nl
11-12 March 2011, Ankara, Turkey
ICEGEG-2011- 3rd International Conference on E-Government and E-Governance
http://www.icegeg.com/index.html
27-29 March 2011, Ghent, Belgium
Online content: policy and regulation for a global market
http://www.eurocpr.org/
28 March 2011, Paris, France
5th European eAccessbility Forum: Benefits and costs of e-accessibility
http://inova.snv.jussieu.fr/evenements/colloques/colloques/70_index_en.html
1 April 2011, Bielefeld, Germany
Big Brother Awards Germany
http://www.bigbrotherawards.de/index_html-en
15-17 April 2011, Berlin, Germany
Re:publica XI: Conference about blogs, social media and the digital society
http://re-publica.de/11/en/
17-18 May 2011, Berlin Germany
European Data Protection Reform & International Data Protection Compliance
http://www.edpd-conference.com
12-15 June 2011, Bled, Slovenia
24th Bled eConference, eFuture: Creating Solutions for the Individual,
Organisations and Society
http://www.bledconference.org/index.php/eConference/2011
14-16 June 2011, Washington DC, USA
CFP 2011 - Computers, Freedom & Privacy
"The Future is Now"
http://www.cfp.org/2011/wiki/index.php/Main_Page
11-12 July 2011, Barcelona, Spain
7th International Conference on Internet, Law & Politics (IDP 2011): Net
Neutrality and other challenges for the future of the Internet
http://p2pfoundation.ning.com/profiles/blogs/7th-international-conference
============================================================
14. About
============================================================
EDRi-gram is a biweekly newsletter about digital civil rights in Europe.
Currently EDRi has 29 members based or with offices in 18 different
countries in Europe. European Digital Rights takes an active interest in
developments in the EU accession countries and wants to share knowledge and
awareness through the EDRi-grams.
All contributions, suggestions for content, corrections or agenda-tips are
most welcome. Errors are corrected as soon as possible and are visible on
the EDRi website.
Except where otherwise noted, this newsletter is licensed under the
Creative Commons Attribution 3.0 License. See the full text at
http://creativecommons.org/licenses/by/3.0/
Newsletter editor: Bogdan Manolea