EDRI-gram newsletter - Number 4.24, 20 December 2006

EDRI-gram newsletter edrigram at edri.org
Wed Dec 20 09:54:09 PST 2006



biweekly newsletter about digital civil rights in Europe

    Number 4.24, 20 December 2006


1. Support EDRI-gram
2. New Audiovisual Directive: First Reading in EU Parliament completed
3. Proposal of computers online searching in Germany
4. New EU recommendation includes the right of reply in the online media
5. Violent video games - a hot topic on the European agenda
6. Wiretapping scandal in Greece ends with record fine
7. Promotion of open standards in Poland
8. EUCD Best Practice Guide published
9. Biometric scanning is being tested in Heathrow Airport
10. UK government reacts to campaign opt out of central medical database
11. ENDitorial: AVMS Directive : TV or not TV b that is the question
12. Recommended reading
13. Agenda
14. About

1. Support EDRI-gram
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in the EU.

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of EDRi-gram in 2006. To continue with EDRi-gram in 2007 we again ask
for your support.

If you wish to help us promote digital rights, please consider making
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KBC Bank Auderghem-Centre, Chaussee de Wavre 1662, 1160 Bruxelles,
Name: European Digital Rights Asbl
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IBAN: BE32 7330 2150 2102

2. New Audiovisual Directive: First Reading in EU Parliament completed
On 13 December 2006, exactly one year after the presentation of the revised
directive by the Commission, the European Parliament's Plenary voted on a
report on the draft Audiovisual Media Services Directive (AVMS) that was
prepared by the Parliament's Committee for Culture and Education.

In December 2005, the Commission proposed a set of new rules for television
regulation to bring it into line with new developments in audiovisual
technology and advertising. The new directive will amend the 1989
"Television without Frontiers" Directive, which was last revised in 1997,
and include, inter alia, new rules on advertising and the extension of the
directive to more audiovisual services than just 'classic' on-air
television. The proposal widened the scope of the directive also to 'non
linear audiovisual media services', i.e. on demand services, also on the

Parliament now amended the Commission proposal in first reading. The main
focus clearly laid on provisions regarding product placement and advertising
which were controversial enough. Definitions regarding the scope, namely of
linear and non-linear services were only slightly clarified by the
Parliament, despite concerns of many interest groups as well as some MEPs.

The EP vote also backed up the Commission proposal that those non-TV
audiovisual services, including so-called non-linear or on-demand services,
will be made subject to some basic content regulation.

After the Parliament's first reading under the co-decision procedure, it is
now again the Council's turn. While having agreed on a preliminary
compromise, the so called General Approach, on 13 November 2006, the Member
States will be working on a Common Position under the German Presidency as
from January 2007.

After that, the draft legislation will be sent back to the Parliament for
the second reading. This will give interest groups once again some b though
small- room for manoeuvre. The Common Position adopted by the Council will
become the new and only basis for discussion in a second reading. Amendments
may only relate to parts of the text which have already been subject of
amendments for the first reading.

In addition, a three-month time limit is laid down by the Treaty for the
Parliament to take action. Therefore the draft can be expected to be adopted
by both the EP and the Council still under German Presidency. Once adopted,
Member States will have two years to transpose the new directive into
national law.

AVMS Directive - Text adopted by the European Parliament (13.12.2006)

MEPs set new rules on TV commercials and product placement (13.12.2006)

Council of the European Union General Approach (13.11.2006)

(Contribution by Angelika Wessels, legal consultant, EU affairs)

3. Proposal of computers online searching in Germany
Earlier this year, Ingo Wolf, the Minister of the Interior of the German
Federal State of North Rhine-Westphalia, and Wolfgang SchC$uble, the German
Federal Minister,  proposed  certain plans that would give the police and
the Interior Federal Office of Criminal Investigation permission to access
online computers of the German citizens of as a measure of internal
security. The plans have been were recently criticized by Germany's Federal
Data Protection Commissioner Peter Schaar.

In August, Mr. Wolf proposed a draft bill for a new Protection of the
Constitution Act giving the Office for the Protection of the Constitution
undercover access to "hard disks" and other "information technology systems"
on the Internet.

Later, in November 2006, Mr. SchC$uble's Program for Strengthening the
Federal Republicbs Internal Security allowing authorities to monitor online
forums was signed by the Budget Committee of the Bundestag and the lower
chamber of Germany's Federal Parliament.

Recently a judge at the German Federal Supreme Court has ruled that there
was no legal basis to allow authorities to make online searches of personal

Talking to Berlin daily Berliner Zeitung, Mr. Schaar, Federal Data
Protection Commissioner, expressed his reservations for this project stating
that an online search cannot be compared to a physical search of a person's
home. "In the case of a search via the Internet a police officer covertly,
without the person knowing about it, accesses a person's computer." By
searching through the Internet, an investigator would act as a "state
hacker" accessing personal data thus being in contradiction with bthe legal
obligation to protect the core of individuals' privacy," said the

"Instead of applying these methods of investigation, the state should
restrict its use of methods to those assigned to it by law," added Mr.

The Security program of the Federal Ministry of the Interior is still being
pursuit by Mr.SchC$uble. The program focuses on searching computers without
any physical access to them and on setting up an "Internet Monitoring and
Analysis Unit " at the Joint Center for Defense against Terrorism where it
will be possible to eavesdrop on Internet telephone calls and closed chat

The North-Rhine Westphalian bill for a new Protection of the
Constitution Act was adopted on 20 December 2006 by the state

Privacy activist Twister from the German group Stop1984 has announced to
challenge the law at the German constitutional court. "This is
outrageous", she said to EDRi-Gram. "They try to tell us that if you go
online, your computer is leaving your home and is out in the public. Have
they ever heard of firewalls and cybercrime? In the information age,
people have their most intimate and private information stored on their
hard drives, and there is an absolute barrier for government's spying eyes
here. And such a barrier has to be kept because privacy can not be
sacrificed in total for an illusion of security."

Data Protection Commissioner criticizes search of private PCs online

NRW state parliament has adopted law for domestic intelligence agency (in
German only, 20.12.2006)

Prosecuting and security authorities to be allowed to search PCs online

Schaar rejects government hacking. Data protection commissioner against
online-searches (only in German, 14.12.2006)

Federal Court of Justice prohibits online-searches of computer systems (only
in German, 11.12.2006)

EDRI-gram: License to hack: domestic Internet intelligence powers growing in
Germany (13.09.2006)

4. New EU recommendation includes the right of reply in the online media
The European Parliament adopted on 12 December 2006, at its second
reading, a recommendation on the protection of minors and human dignity and
on the right of reply in relation to the competitiveness of the European
audiovisual and online information services industry.

The right of reply in the online media has been heavily discussed also in
the previous years, including a much contested 2004 Council of Europe
Recommendation on the right of reply in the new media environment. In
practice the recommendation has not been implemented in the member
countries, but various human rights groups have expressed their serious
concerns regarding its practical effects on the freedom of expression.

The new document proposed by the Council considers again that: bIt is
appropriate for the right of reply or equivalent remedies to apply to
on-line media, and to take into account the specific features of the medium
and service concerned.b

The recommendation adopted by the European Parliament is now vaguer than
the initial text discussed in 2005 suggesting that the member states should
consider bthe introduction of measures into their domestic law or practice
regarding the right of reply or equivalent remedies in relation to on-line
media, with due regard for their domestic and constitutional legislative
provisions, and without prejudice to the possibility of adapting the manner
in which it is exercised to take into account the particularities of each
type of medium. b There is no hint on what should be considered as
mediab or how an actual implementation of this recommendation could be

The right of reply in the new media is also included in the new Audiovisual
Media Services Directive recently adopted in its first reading by the
Parliament, but the text now refers only to the TV-like services on the

On the same occasion the Commission announced its interest for two other
activities for the safety of the Internet that have been discussed in the
previous EP meetings. The first one regards the possibility of
introducing a European free phone number or of extending an existing service
to assist Internet users by directing them to available complaint mechanisms
and information resources and providing information for parents about the
effectiveness of filtering software. The second initiative is related to
the possibility of supporting the establishment of a generic second level
domain name reserved for monitored sites committed to respect minors and
their rights, such as .KID.eu.

Keep children safe while browsing the Internet, Parliament says (12.12.2006)

European Parliament legislative resolution on the Council common position
for adopting a recommendation on the protection of minors and human dignity
and on the right of reply in relation to the competitiveness of the European
audiovisual and online information services industry (12.12.2006)

Common Position adopted by the Council - Recommendation on the protection of
minors and human dignity and on the right of reply in relation to the
competitiveness of the European audiovisual and on-line information services
industry (18.09.2006)

EDRI-gram: Council of Europe insists on right of reply (29.12.2004)

EDRI-gram:Rapporteur EU parliament: more liability for ISPs (6.04.2005)

5. Violent video games - a hot topic on the European agenda
Starting from a violent video game seen in Italy by Commissioner Frattini, a
new hot topic has started to be heavily discussed by European Union bodies
and Member States. Although the self-regulation measures are already in
place for some years, a new approach is pushed by the Italian Commissioner.

As previously reported by EDRI-gram, the violent video game debate started
in Italy where the Minister of Justice, Mr. Clemente Mastella, has
claimed that it would be advisable to create an "authority" that would
"decide on acceptable standards related to the modalities of sale" of
videogames, after the game "Rule of Rose" appeared on the market. The debate
was extended to the EU level by the Italian Commissioner for Justice,
Freedom and Security Franco Frattini that sent a letter to all the Internal
Affairs Ministries on this topic, asking them to do something about the
"dreadful" glorification of violence and the "obscene...brutal [and]
perverse" games distributed to Europe's children.

The first answer came very quickly from the Information Society
Commissioner, Mrs. Reading, that criticized his colleague in harsh terms:
"It is very unfortunate that my services were not pre-consulted before your
letter to the Ministers of Interior was sent out.b She also reminded that a
European self-regulation system for classification of the violent games -
called PEGI (Pan European Gaming Information) - had already been in place
since 2003, strongly backed up by Mrs. Reading. She emphasized that
the system was very similar to the one used for movies and it was the best
solution not to censor the content: "This is in line with the Commission's
view that measures taken to protect minors and human dignity must be
carefully balanced with the fundamental right to freedom of expression as
laid down in the Charter on Fundamental Rights of the European Union."

Another answer came from the UK Minister of Interior, John Reid that also
presented the PEGI system as a viable solution, if properly enforced. He
added that a retailer could face imprisonment in UK if it sold violent games
to minors.

Italy is not the only country where the violent video games are a hot topic.
A recent event was reported in the western part of Germany where an 18-year
old Counter Strike fan wounded several pupils at a school in Emsdetten
before killing himself. Politicians in Bavaria and Lower Saxony have
promptly reacted by drafting a new law that will fine and even imprison
videogame producers that will create games containing "cruel violence on
humans or human-looking characters."

Frattini has continued his critical remarks on the present system in a
declaration in the European Parliament and called for a
multidisciplinary approach to the problem. He considered that three
components needed to be encouraged: rating of movies and games, media
and technical solutions. Frattini also announced that in the spring of 2007
he would present to the Parliament a new declaration on cybercrime.

It is clear, at this point, that the present European system is put under
scrutiny, compliance with the voluntary rating system being considered as a
possible significant problem. This is why EU is planning a 2007 conference
on violent video games, where all the stakeholders could discuss and
eventually agree on the best practices to follow. The topic will still be
present on the agenda of the EU Justice Ministers meeting in January 2007,
when a legislative action could be initiated.

EU may regulate development and sale of violent video games (15.12.2006)

EU to take UK lead on violent video games (8.12.2006)

Euro commissioners swap slaps in video game row (24.11.2006)

German gamers face jail for acts of virtual violence (12.12.2006)

Franco Frattini - European Commissioner on Justice, Liberty and Security -
bDeclaration on violent games b(only in French, 13.12.2006)

EDRI-gram : Italian Minister of Justice proposes an authority for violent
videogames (22.10.2006)

6. Wiretapping scandal in Greece ends with record fine
As a result of the scandal related to the wiretapping of phone conversations
of several Greek officials, including Prime Minister Costas Karamanlis,
during the period August 2004 b March 2005, Vodafone was fined by the Greek
privacy committee for not having protected its network against hacking

The Greek Prime Minister, other ministers, top military officials, human
rights activists, the police, army and intelligence heads, journalists and
lawyers were illegally monitored for almost a year by unknown hackers
through the Vodafone network. The action was discovered in March 2005 but
the hackers behind the wiretapping have not been discovered.

Vodafone was blamed by the Hellenic Authority for the Information and
Communication Security and Privacy for obstructing its investigation and
failing to report the installation of the surveillance software and
therefore fined it with 76 million euro.

Vodafone had deactivated the legal surveillance system used by the hackers
too soon to trace them.

The Greek unit of Vodafone considers the action as groundless and intends to
contest the decision at the independent committee of the Council of State,
Greece's highest court of arbitration.

"Vodafone announced that it fully rejects the rationale of the authority and
considers the penalty illegal, unfair and totally groundless" stated
Vodafone's Greek operation.

Vodafone also intends to verify the responsibility of the Swedish technology
equipment maker Ericsson in this matter.

The Greek Parliament is also investigating the circumstances of the senior
Greek Vodafone officialbs death who was found hanged a little before the
illegal surveillance activities were discovered.

Greek privacy watchdog fines Vodafone over wiretapping scandal (14.12.2006)

EDRI-gram: Government communication illegally wiretapped in Greece

7. Promotion of open standards in Poland
On 14 December 2006 a Coalition for Open Standards was established by a
large group of IT companies and organizations in Poland with a view to
promote open technological standards.

The coalition aims at taking measures to ensure freedom of choice for IT
solutions for Polish citizens as well as businesses and administration
bodies by enforcing open standards for information storage and exchange.

The use of open standards has numerous advantages among which the
possibility to freely exchange information, the freedom of choosing the IT
tool suppliers, an increased flexibility and interoperability in
implementing IT solutions, an increased competitiveness and quality of
systems on the Polish market.

The lack of open standards leads to higher costs, closed formats for sharing
information requiring the use of specific software.

The Coalition for Open Standards includes companies present on the Polish
market, such as Corel, IBM, Macrologic, Novell, Oracle, etc.,
but also organizations such as Aviary.pl, Internet Society Poland, the
Professional Linux Association, the Cities Online Association and the PRO
Polish Software Market Association. The new coalition intends to promote
open standards through its website, as well as by educational and
campaigns for the public.

Large interest on open standards has been shown in many EU countries. Thus,
on 2 November, the Athens Internet Governance Forum hosted in Athens the
Open Standards, Interoperability and Government Procurement event where one
recommendation for Governments was to follow the example of countries such
as Denmark or Belgium in adopting Open Document Format especially for public

During the IGF meeting, a Dynamic Coalition on Open Standards
was created. This Dynamic Coalition wants to frame and define the most
urgent problems related to open technology standards and application
interoperability and suggest straightforward, workable solutions that can be
implemented by all stakeholders.

Polish Coalition for Open Standards

Open standards for information exchange and storage a prerequisite for the
information society development (14.12.2006)

Promoting Open Standards for the Participation Age (31.10.2006)

IGF Dynamic Coalition on Open Standards (2.11.2006)

8. EUCD Best Practice Guide published
A network of European civil society experts, including several EDRI members,
published in December 2006 a Best Practice guide for countries implementing
the EU copyright directive.

The guide aims at legislators and advocates of a
balanced copyright framework in countries hoping to join the EU in
the next decade. It shows how these countries can maximise
creativity, access to knowledge, but also political and cultural
participation within the EU copyright regime.

The project's wiki contains a more detailed analysis of existing member
states' legislation, and will continue as a resource for civil society
campaigners for copyright reform in Europe and around the world.

The guide, sponsored by the Open Society Institute, can now be freely
downloaded from the Internet.

Best Practice Guide - Implementing the EU Copyright Directive in the Digital
Age (12.2006)

EUCD Review and Implementation Wiki

(contribution by Ian Brown - EDRI-member Open Rights Group, UK)
9. Biometric scanning is being tested in Heathrow Airport
A biometric scanning system called miSense started to be used as a trial on
December 2006 at Heathrow Airport, as part of the International Air
Transport Association's Simplifying Passenger Travel Programme.

The system allows passengers to scan their passport and right index finger,
creating an electronic key that permits them to skip boarding queues, thus
aiming to simplify their journey through the airport. The UK Government
decided to use it to control immigration and check the identity of people
coming to Great Britain.

The UK immigration minister Liam Byrne, said the scanning system would
improve security but also allow the passengers to go through the check-in
more easily and rapidly: "I think it's going to be popular. People want
secure borders. If we can find a way of strengthening security and making it
easier for legitimate travellers to move around then I think the public are
going to want that."

Initially, the miSense system will be used for Heathrow's Terminal 3 flights
to Hong Kong and Dubai. A second stage of the trial will allow all
passengers flying from Terminal 3 to use the system by registering their 10
fingerprints, a scan of each eye and a scan of their face that will be
linked to their passport information. Then, the passengers will be provided
with a membership card that they can use to go through the system by using
only their fingerprints for identification.

Simon Davies from Privacy International considered that the biometric
scanning technology is still unstable and unreliable and pointed out: "At
this early stage of biometric understanding this programme can have only
extremely limited value."

The purpose of the trial is to check the technical performance of the system
and to see how it will be accepted by the passengers.

If successful, the system could adopted in airports all over the world.

miSense system

Face scans for air passengers a step nearer (8.12.2006)

Biometric science arrives at Heathrow (6.12.2006)

10. UK government reacts to campaign opt out of central medical database
English health minister Lord Warner has reacted to TheBigOptOut.org, a
campaign that mobilises citizens to opt out from a proposed national
medical database. He is offering patients an opt-out from one part of
the new system - a synopsis for emergency care, which contains things
like your prescriptions and whether you are diabetic. He is not
offering an easy opt-out from the full database. The plan is to upload
data from family doctors and hospitals over the next year or two, to
regional hosting centres. Custody of the data will then pass from
doctors to the Chief Medical Officer, a government official.

The campaign is now focussed on persuading people to forbid their
doctors from uploading the data in the first place. A November poll
showed that most general practitioners would not upload data without
patient consent; another showed that a majority of patients did not
approve of a compulsory central database.

The Big Opt Out

Latest media coverage of campaign (20.12.2006)

EDRI-gram: Campaign launched in UK to opt out of central medical database

(Contribution by EDRI-member Foundation for Information Policy Research -

11. ENDitorial: AVMS Directive : TV or not TV - that is the question
The discussions on the new Audiovisual Media Services Directive (AVMS) are
continuing unabated within the European Union's institutions. With regards
to Internet media, the Council of the European Union and the European
Parliament are moving in the same direction. The question is how far.

The new Directive proposed by the Commission in December 2005 (COM(2005)646)
was meant to modernize the Television without Frontiers Directive (TVWF),
which was last updated in 1997. Besides proposed liberalized rules for
classic television regarding advertisement or product placement that have
been widely discussed, the new Directive also introduces regulation for so
called 'non-linear audiovisual media services', including on the Internet -
a fact that did not receive wide public attention to date.

The adoption of the Directive is pursued under the co-decision procedure,
whereby both, the Council and the Parliament are involved in the process.

On 13 November, the 'Education, Youth and Culture Council' came up with a
first 'General Approach' proposing amendments to the Commission
Proposal of December 2005.

On Wednesday last week, 13 December, the European Parliament adopted a
legislative resolution on the AVMS in its first reading, also amending the
Commisson proposal.

In spite of the parallel discussions in the Parliament and the Council, the
two have slightly differing approaches on how far the new Directive will in
fact be applicable to Internet media, although they are moving in the same

The good news is that compared to the vague initial Commission proposal, the
current definition of 'non-linear audiovisual media services' has been
narrowed down considerably by both the Parliament and the Council.
Which Internet services will in the future be regulated by this EU
directive, however, remains unclear.

While the Council in its general approach sees it as "characteristic of
on-demand services that they are 'television-like'", and does not include
non-commercial services such as "private websites and services consisting of
the provision or distribution of audiovisual content generated by private
users for the purposes of sharing and exchange within communities of
interest" - obviously trying to exclude services like YouTube -, Parliament
is not that lucid.

The text adopted by the EP defines audiovisual media services, both off- and
online, still somewhat vaguely as services "the content of which is suitable
for television broadcasting irrespective of the delivery platform".

But also the Parliament acknowledges - in line with the service definition
of the EU Treaty - that non-economic activities "which are normally not
provided for remuneration, such as weblogs and other user-generated content
or any form of private correspondence, such as e-mails and private websites"
are not covered by the Directive.

But that's not a reason for celebration, yet. The Parliament's
report that was compiled from a number of Committee proposals under the
responsibility of rapporteur Ruth Hieronymi of the Committee for Culture and
Education in many points suggests additional regulation compared to the
initial proposal by the Commission.

For example, the right of reply was introduced for non-linear services
as well as an obligation for Member States to ensure that media service
providers provide filtering systems along with a stipulation that new
television sets shall be equipped with technical devices to enable certain
programmes to be filtered out.

While the Commission in its proposal stressed the 'country of origin
principle' - i.e. whatever is legal in one EU country is also licit in every
other Member State and must not be blocked -  the
Parliament in its resolution allows for derogations from this principle, the
introduction of which was initially mentioned as one of the main motives
for the update. For example, in a speech from 22 September 2005
Commissioner Reding stressed that " (...) an effective country of origin
principle - for me a cornerstone of the European audiovisual policy."

The results of the Parliament's first reading show improvements in some
areas, while the level of regulation was increased in others. Especially the
inconsistency in the country of origin principle makes it hard to find the
justification for the regulation of on-demand services under the AVMS, given
that many such provisions already exist in the EU e-Commerce Directive and
in national legislation.

The ongoing co-decision procedure will show how far this regulation will go
in the end and what the consequences of this "technologically neutral
approach" eventually will be for a still growing market. A market that
certainly would not have grown this fast had it been regulated in such a way
from the beginning.

Budapest Recommendations to the European Parliament on the draft Audiovisual
Media Services Directive (1.12.2006)

Speech by Viviane Reding, Audiovisual Conference * Between Culture and
Commerce - Liverpool (22.09.2005)

EDRi-gram: Draft Audiovisual Directive Limited To The TV-Like Services On
The Web (22.11.2006)

(Contribution by Christian MC6ller)

12. Recommended reading
The "principle of availability" - the free market in access to
data/intelligence will rely on "self-regulation" by the law enforcement
agencies and make accountability almost meaningless
Tony Bunyan, December 2006, Statewatch

13. Agenda
27-30 December 2006, Berlin, Germany
23rd Chaos Communication Congress: "Who can you trust?"

17-19 January 2007, Geneva, Switzerland
Special Session of the Standing Committee on Copyright and Related Rights
(SCCR): First Session

20 January 2007, Paris, France
Big Brother Awards France

28 January 2007, Europe-wide
Data Protection Day: An initiative of the Council of Europe with the
support of the European Commission

19-23 February 2007, Geneva, Switzerland
Provisional Committee on Proposals Related to a WIPO Development Agenda:
Third Session

1-4 May 2007, Montreal, Canada
7th Conference on Computers, Freedom, and Privacy (CFP2007). The deadline
for proposals is 20 January 2006

14. About
EDRI-gram is a biweekly newsletter about digital civil rights in Europe.
Currently EDRI has 25 members from 16 European countries.
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
visibly on the EDRI website.

Except where otherwise noted, this newsletter is licensed under the
Creative Commons Attribution 2.0 License. See the full text at

Newsletter editor: Bogdan Manolea <edrigram at edri.org>

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