EDRi-gram newsletter - Number 7.19, 7 October 2009

EDRI-gram newsletter edrigram at edri.org
Wed Oct 7 12:00:05 PDT 2009



biweekly newsletter about digital civil rights in Europe

    Number 7.19, 7 October 2009


1. Controversial draft Framework Decision on Child Sexual Exploitation
2. Reding: EU policy for information society for the next years
3. Turkey blocks thousands of foreign websites
4. Deja-vu: France's three-strikes law referred to Constitutional Council
5. The Pirate Bay may be banned in Italy
6. France wants to filter online gambling sites
7. Paris Court of Appeals on a GPL - related case
8. US gives up its unilateral supervision powers over ICANN
9. ENDitorial: Amendment 138-EP asked to choose between democracy and defeat
10. Recommended Reading
11. Agenda
12. About

1. Controversial draft Framework Decision on Child Sexual Exploitation

The Civil Liberties Committee of the European Parliament held its first
exchange of views on the controversial Proposal for a Framework Decision on
combatting the sexual abuse, sexual exploitation of children and child
pornography. The draft legislation includes an obligation to require ISPs to
"block" access to child pornography sites and attempts to harmonise the
approach of the 27 EU Member States to this issue. This new legislation
repeals and replaces an existing instrument from 2004, which failed to have
a significant impact on harmonisation in some of the key areas covered by
the legislation, such as the definition of "child pornography" and which was
also not fully implemented by all Member States.

In the meeting, the European Commission defended its proposal for mandatory
blocking on the simple basis that it will "prevent crime" because customers
will no longer be able to access commercial child pornography sites
directly. Fundamental issues such as whether this approach, with its various
technical limitations and practical inadequacies, would be proportionate to
the "solution" being offered were not addressed or acknowledged. The fact
that circumvention is possible was, however, mentioned. A Commission
official also made several obscure references to plans to take
"extraterritorial" action to have websites taken offline at source. These
statements appear to echo plans in the Commission Communication of June 2009
on "an area of freedom security and justice serving the citizen"
COM(2009)262 to create "mechanisms to revoke the IP addresses of criminal
ISPs and to facilitate rapid shutdown of websites outside Europe".

The MEP in charge, Roberta Angelilli (EPP, Italy) was also responsible for a
report on the previous Framework Decision adopted by the Parliament earlier
this year. At that time, the Parliament rejected her attempt to propose
blocking as a solution for child pornography websites. In the previous
session of the Parliament, she was an ordinary member of one of the smallest
political groups in the Parliament, but she is now a Parliament
Vice-President and a member of the biggest political group. She was not
present for this first discussion and her substitute Salvatore Iacolino
(EPP, Italy) did not mention blocking.

EDRi distributed its position paper to the political groups before the
meeting. During the debate, issues raised in the EDRi position paper were
highlighted by some MEPs. In particular, Jan-Philipp Albrecht (Germany,
Greens) and Birgit Sippel (S&D, Germany) raised serious concerns regarding
the need to engage in effective international cooperation to remove websites
at source rather than leaving them online to be accessed via technical
circumvention measures or accessed directly in countries where they are not
blocked. On the other side of the argument, certain MEPs did not reflect on
the rights and wrongs of blocking, preferring instead to call for
"everything" to be done to protect children, on the unexplained assumption
that blocking would achieve this goal.

One key issue of controversy in the Impact Assessment is the question of
whether or not a legal basis for blocking is necessary in order for it to
comply with Article 10 of the European Convention on Human Rights. This is
significant because some countries that have already implemented blocking
have done so without a legal basis and rumours emerging from the Council
suggest that "self-regulation" is being discussed as an alternative to
mandatory blocking. The Commission document explains that Member States
should only consider legislation in the absence of "effective"
self-regulation (i.e. no legislation is needed). It then goes on to explain
that over-blocking is a concern and, in the absence of a blocking being
"prescribed by law", "this measure risks to amount to a non-legitimate
interference with fundamental rights" (i.e. legislation may be needed).

Finally, the Impact Assessment argues that "as interpreted by the European
Court of Human Rights in Strasbourg, to respect fundamental rights such
interference needs to be in accordance with the law and constitute a
necessary measure in a democratic society for important interests, such as
the prevention of crime.Such measures must indeed be subject to law, or they
are illegal".

EDRi position paper: Framework Decision on Child Sexual Exploitation
(Angelilli Report) (28.09.2009)

Impact assessment:

(links to all EU languages)

Commission Communication on freedom, security and justice:

(Contribution by Joe McNamee - EDRi )

2. Reding: EU policy for information society for the next years

The EU Commissioner for Information Society and Media, Viviane Reding,
participated last week at a breakfast event organised by the European
Digital Media Association (EdiMA) and had a speech that highlighted the main
EU key policy areas for information society for the next commission.

Ms. Reading insisted that the President Barroso has announced his policy
commitment to define, under the next Commission, an ambitious European
Digital Agenda that is scheduled for adoption in March 2010, aimed at
tackling the main obstacles to a genuine digital single market with targeted
legislative measures.

She also pointed out the main five points where pro-active measures are
needed from the Commission:

1.The issue of mass scale digitisation of books and orphan works. Ms.
Reading expressed her frustrations in relation with the development of
Europeana, Europe's digital library and pushed for "a modern set of European
rules that encourage the digitisation of books, including one or several
European Right Registries"

"If we don't act quickly, soon U.S. citizens will not only benefit from the
largest digital content offer, they will also be able to access through a
simple click almost 10 million books, including orphan works which are
largely part of our European cultural heritage. As European citizens,
students, teachers and researchers will not being able to do the same, there
is an actual risk of establishing a new digital divide across the Atlantic"
stressed the Commissioner.

2. A harmonised single European market with clearer rules enabling users
to be free to buy and enjoy anywhere, anytime and on any platform the
content they paid for. On this topic the Commissioner suggested a reflection
paper over a set of possible policy and legislative options aimed at
facilitating multi-territorial or EU-wide licensing for digital content. She
rejected the "Copyright task force" aimed at policy coordination - as
suggested by EDIMA - and argued for a common objective of the key
directorates in the Commission "a modern, pro-competitive and
consumer-friendly single-market framework for digitising, accessing and
licensing digital content online across the 27 EU Member States."

3. The European-wide adoption of the global web accessibility standard,
the new Web Content Accessibility Guidelines.

4. Industry and consumers should work together for a European system of

5. Network neutrality. Ms Reding praised the European Parliament for
"strengthening" the provisions concerning net neutrality in the Telecom
package and suggested a broad debate in 2010 about this topic. The
Commissioner also confirmed that she was a strong advocate for Internet

"I have myself indicated that I would be prepared to act on this basis in
case of continued blocking of Voice over IP services by certain mobile
operators. The new Telecom package is in many instances a quite robust
answer to such new threats to net neutrality. However, I also know that
technology and regulation will evolve further in the years to come. And I
plan to be Europe's first line of defence whenever it comes to real threats
to net neutrality."

This seems contradictory with the current text of the Telecom
package, heavily criticized by civil society especially for not providing
enough safeguards for network neutrality. Moreover, the discussions between
the EP Conciliation Committee and the European Council seem to go in the
opposite direction: not to open up again the negotiations on the network
neutrality subjects.

Viviane Reding Member of the European Commission responsible for Information
Society and Media The Digital Single Market: a key to unlock the potential
of the knowledge based economy EDiMA's White Paper on Policy Strategy for
the Development of New Media Services 2009-2014 - Launch Breakfast Event
Brussels (1.10.2009)

Opening the Package "too risky" for EU (28.09.2009)

Concerns About Article 20, 21 and Recital 26 of the Telecoms Package

3. Turkey blocks thousands of foreign websites

Following the entering into force in November 2007 of the Turkish Law No.
5651 entitled Regulation of Publications on the Internet and Suppression of
Crimes Committed by means of Such Publication, a large number of websites
have been blocked in Turkey.

According to Dr. Yaman Akdeniz, Founder and Director of Cyber-Rights &
Cyber-Liberties (UK), there are at present more than 6000 websites blocked
in Turkey including known sites such as YouTube, WordPress, GoogleGroups
and Sites, DailyMotion and others. Some of the sites are blocked by court
orders while most of them are blocked by administrative blocking orders
issued by the Telecommunications Communication Presidency (TIB).

Some websites are blocked because they are considered obscene, others for
involving child abuse and sexual exploitation, gambling, betting,
prostitution and others for being considered as related to crimes committed
against Atat|rk.

Part of the websites has been blocked by courts although the reasons for
blocking them were outside the scope of Law No. 5651. The website blocking
can also occur in relation to intellectual property and websites such as The
Pirate Bay or MegaUpload are constantly blocked in Turkey. Myspace has been
recently blocked and, for a temporary period of time even Farmville, the
game offered by Zynga.com through Facebook was also blocked based on an
administrative decision because Zynga promotes gambling through some of its
social games. Two other sites related to the largest gay community in Turkey
were blocked the same day and it seems the sites intend to challenge the

Since May 2009, TIB has decided not to publish any statistics or details
related to the websites blocked on the basis of Law No. 5651 which as Dr.
Akdeniz says is "a step backwards and in the absence of information,
openness, and transparency".

>From Farmville to Gayville, Internet censorship continues in Turkey

At least 6000 websites censored from Turkey (22.09.2009)

Unblock The Banned Websites In Turkey Petition (28.09.2009)

EDRi-gram: Turkey: Another blocking order against YouTube (3.12.2008)

4. Deja-vu: France's three-strikes law referred to Constitutional Council

As expected, on 28 September 2009  the socialist group of the French
National Assembly submitted their referral to the Constitutional Council
against the second version of the three strikes law (so-called Hadopi 2)
passed in September through both chambers of the French Parliament.

The text of the referral, obtained exclusively by Liberation, challenges the
law article by article. The main argument supported by the socialist group
against the law is the non-observance by the Assembly of the "procedural
guarantees regarding the sanctions involved", meaning the right to a fair
trial, right to defense, presumption of innocence etc. Other arguments are
some of those which caused the rejection of the first version of the law,
Hadopi 1, by the Constitutional Council in June 2009, such as the
sanctioning of a user for negligence.

Another anti-constitutional provision is related to the simplified procedure
chosen by the government in the application of sanctions. According to the
French Criminal Code, "the public ministry can appeal to the simplified
procedure only when it results from the police enquiry that the deeds the
defendant is investigated for are established". A simple IP address sent by
HADOPI authority to the judge is not enough to prove the facts the user is
accused of. The procedure looks more like an administrative procedure,
putting the judge in the position of just approving an already taken

The Constitutional Council has a month to take its decision on the matter.

Hadopi 2: the appeal to the Constitutional Council submitted on Friday (only
in French, 24.09.2009)

Hadopi-2 goes to Constitutional Council

Hadopi 2: Exclusively, the referral submitted to the Constitutional Council
(only in French, 28.09.2009)

EDRi-gram: The French Constitutional Council censures the 3 strikes law

5. France wants to filter online gambling sites

>From 7 till 9 October 2009, the French National Assembly will discuss a
draft law on opening the competition and regulation of online gambling
sector. The text foresees the creation of a similar authority to that of
HADOPI, called ARJEL that would order the filtering of the gambling sites
considered to operate illegally.

Although in a first version of the draft law ARJEL was referring to a judge
for the blocking of the site, now, in order to expedite the procedure, the
present text gives the authority the direct right to impose filtering of
websites to ISPs.

ARJEL is meant to operate in a similar way to HADOPI. The authority will
address the non-authorised gambling sites asking them to observe the
interdiction and giving them 8 days to present their observations. In case
of non-compliance, the authority may order the banning of the service. The
authority can act upon any claim made by any natural or legal person.

The text says nothing about the filtering methods to be used or the way to
make public or update the list of sites to be blocked and no reference is
made to the costs incurred by blocking the sites. Deputy Lionel Tardy and
the socialist group have submitted an amendment to the text by which they
require the filtering modalities to be specified by the law as well as the
modalities to compensate the costs supported by operators. The group also
asks for the reintroduction of the initial legal procedure, where a judge is
the one who takes the decision regarding blocking the websites.

La Quadrature du Net warns that not only filtering sites is entirely
inefficient but it is also a dangerous measure as it may just be a precedent
allowing for an extention from gambling sites to other types of sites later
on, opening the door to limitations of the freedom of expression and
bringing forth the risk of censoring the Internet. There is also the risk of
blocking other sites than the targeting ones which may happen when access to
a site is blocked especially if this is done based on their IP address.

Another serious issue is that ARJEL as administrative authority is given the
power to direclty filter sites, which is unconstitutional.

As it happened in case of Hadopi, la Quadrature du Net encourages the
citizens to contact their deputies and convince them to stop Internet

Online gambling: The Assembly asked to vote for Net filtering (only in
French, 5.10.2009)

Blocking a site is to limit access to the Internet (only in French,

Online gambling: Filtering the Net on 7 October in the Assembly (only in
French, 5.10.2009)

Draft project: Economy: online gambling- Preliminary works of the National
Assembly - First reading (only in French)

Draft Law N0 1549 - National Assembly - on the openness to competition and
the regulation of online gambling (only in French, 30.03.2009)

6. The Pirate Bay may be banned in Italy

An appeal won on 24 September 2008 against the decision of the Italian court
enforced on 10 August 2008 ordering the seizure of The Pirate Bay (TPB) in
Italy, has been reversed by the Italian Court of Cassation.

The Order of the Justice for preliminary investigation of the Court of
Bergamo issued on in August 2008 was asking for the "seizure" of the
PirateBay website for displaying links to allegedly illegal duplicated
material and was forcing Italian ISPs to block the access to that site.
Following the EDRi-member ALCEI report to the Italian Data Protection
Authority showing violations of the law in the seizure order, the Bergamo
Criminal Court overruled the seizure but only on a procedural basis. Now the
Italian Court of Cassation has addmitted the recourse of the Bergamo
Prosecutors and has decided to send back the case to the first comptent

TPB can once again be blocked in Italy, to the satisfaction of FIMI, the
major representative body of the Italian record labels which, early this
year, together with anti-piracy organisation FPM, filed a 1 million euro
damages lawsuit against the site on behalf of the Italian music industry.

In the meantime in Sweden, in TPB's appeal case against the ruling from
April 2009, judge Fredrik Niemeld has been disqualified by the Appeal
Court from the hearing planned for November 2009 for holding stock options
in Spotify digital music service.

Italian Appeals Court Rules against Pirate Bay (1.10.2009)

Cassation: The un-seizure of TPB is revised (only in Italian, 30.09.2009)

Baia, the judge takes sides. But with whom? (only in Italian, 30.09.2009)

EDRi-gram: An update on the Italian PirateBay case (8.08.2009)

7. Paris Court of Appeals on a GPL - related case

The Paris Court of Appeals published in September 2009 its decision on a
case that involved the distribution of the VNC Software, remote desktop
access software available under GPL GNU licence.

The case was brought forward by AFPA (Association for professional education
of adults) against Edu4, a commercial company. Edu4 won a contract in
2000 that foreseen the delivery of a software solution to AFPA. The
Association discovered that VNC was distributed with this equipment
without providing the source code or keeping the licence notices.

Free Software Foundation France presented the case like a landmark ruling
and stated: "Companies distributing the software have been given a strong
reminder that the license's terms are enforceable under French law. And
users in France can rest assured that, if need be, they can avail themselves
of the legal system to see violations addressed and their rights respected."

Unfortunately, the case is merely a contractual dispute between the two
parties that did not involve the GPL licence as such. Also, the court did
not specifically address the enforceability of the GPL Licence.

As the lawyer Martin von Willebrand explains on his blog "Not a single
claim (by either party), as cited in the court's decision, is based on GPL
license, any interpretation of GPL as a contract or any copyright. The
decision cites GPL license a number of times, mostly to describe
VNC-software and also partly related to the discussion whether it was
allowed or not to include free software into the outcome of the project."

The court decision considered that " Edu4 has failed to fullfil its
contractual obligations delivering in December 2001 (...) a product which,
on the one hand, created privacy risks for EOF users and, on the other hand,
did not satisfy the terms of the GNU GPL licence, as Edu4 had replaced by
its own copyright the original VNC's copyright notices regarding the
ownership of the two files and the text of the licence."

Thus, this case can't be considered a landmark ruling, with the GPL licence
playing a side role in the context of the entire case. However, it is worth
underlining that "the court habitually considers the software licensed under
the terms of GNU GPL and attaches legal significance to the terms" as von
Willebrand concludes.

Paris Court of Appeals condemns Edu4 for violating the GNU General Public
License (22.09.2009)

Recent Court Decision in Paris (referred as Paris GPL case) (1.10.2009)

Court decision - Cour d'Appel de Paris, Ptle 5, Chambre 10, no: 294, (only
in French, 16.09.2009)

8. US gives up its unilateral supervision powers over ICANN

In a movement welcomed by the European Commission, the US have announced
they would become more open in Internet governance and give up their
dominant position in the supervision of the Internet Corporation for
Assigned Names and Numbers (ICANN), the body created in 1998, responsible
with the global management of the internet domain names and addresses.

A recent statement co-signed by US Communication and Information
Administration and ICANN stated the "commitment to a multi-stakeholder,
private sector-led, bottom-up policy development model for the domain name
and addressing system (DNS)" and that "A private coordinating process, the
outcomes of which reflect the public interest, is best able to flexibly meet
the changing needs of the Internet and of Internet users." According to
Massimiliano Minisci from ICANN this actually means that "the political
responsibility of the Internet moves from the US to the global community"
which includes governments, civil society, companies and experts from all
over the world.

Since 2005, the US have been largely criticised for their dominant position
in ICANN and strongly pressured by the European Commission to be more open
and loose its tight grips on Internet governance. In a speech made on 4 May
2009, Commissioner Viviane Reding made an appeal to president Obama to
reform the US position in Internet governance.

"I trust that President Obama will have the courage, the wisdom and the
respect for the global nature of the Internet to pave the way in September
for a new, more accountable, more transparent, more democratic and more
multilateral form of Internet governance," said Reding at that time when she
proposed a large reform of the Internet governance including "an independent
judicial body" and "a multilateral forum for governments to discuss policy
and security issues" related to the Internet. She proposed the forum to be
structured as a G12, with two representatives from Europe, North America,
South America, Africa and Asia, one from Oceania, and the chairman of ICANN
as a non-voting member.

Starting with 30 September, the "Joint Project Agreement" in the US,
presently ensuring a unilateral supervision of ICANN's decision by the US
Department of Commerce will be replaced by a joint "affirmation of
commitments" of the US Government and of ICANN.

Reding expressed her satisfaction for the US's present decision considering
that ICANN's decisions related to domain names and addresses can now be
"more independent and more accountable, taking into account everyone's
interests". She stated that ICANN's performances would be periodically
evaluated by external review panels. The panels will be appointed jointly by
ICANN and ICANN's Governmental Advisory Committee which is open to
governments and public authorities from all around the world and advises the
ICANN Board on public policy aspects.

The Swedish EU Presidency considers the US announcement as "an important
moment in the process towards the increased internationalisation of ICANN's
coordination and management of the Internet DNS".

EU hails US move to open up Internet governance (2.10.2009)

European Commission welcomes US move to more independent, accountable,
international internet governance (30.09.2009)

Reding attacks US rule over Internet governance (6.05.2009)

9. ENDitorial: Amendment 138-EP asked to choose between democracy and defeat

The opening meeting of the informal conciliation discussions between the
Council and European Parliament (EP) has taken place. This process was
largely brought about by the Parliament's overwhelming rejection of a
"compromise" proposal with regard to the famous "amendment 138" text in May
of this year.

The Council of Ministers' current proposal is for the Parliament to
unconditionally overturn its current position and accept the text that it
previously rejected.

As a result, the debate has become wider than "simply" the wording of one
paragraph of a piece of telecoms legislation. Instead, it is now a question
of the credibility of the Parliament as an institution and as a truly equal
partner in the legislative process. Consequently, the parliamentarians in
the Conciliation Committee are faced with a very stark choice between a
defeat, whose consequences for the Parliament will extend far beyond the
telecom package, or defending the democratic choices it has already made:


Parliamentarians can choose to accept the Council's text. If they do so:

1. This will establish a new benchmark for inter-institutional
negotiations, suggesting that any Parliament vote of any size on any dossier
is vulnerable to being abandoned at a later stage in the decision-making
process. This can only serve to durably weaken the Parliament's negotiating
2. They are laying the Parliament open to the accusation that they were
being pro-consumer before the elections and now betraying the trust of
citizens by taking an opposite position after the elections.
3. They are giving up the mandate that the previous vote gave them to
accept a Council position for which no coherent justification has ever been


On the other hand, the Parliament can demand that the Council (finally)
explain its motives for opposing amendment 138, thereby fulfilling a key
role that a parliament is supposed to play - demanding an adequate level of
coherent and transparent decision-making from other institutions.

For the moment, the arguments being used by the Council vary from the
obviously weak to the simply far-fetched. According to sources in the
negotiations, the Council has suggested, for example, that it cannot allow
consumers an unconditional right to a prior judgement by a judicial body
because of the need to protect networks from attacks.

Telecoms Package - Wikipedia

List of MEPs on the Conciliation Committee:

(contribution from Joe McNamee - EDRi)

10. Recommended Reading

European Association for the Defense of Human Rights: Human Rights must be
the cornerstone, not just a reference, of the Stockholm Programme

Association Europienne pour la difense des Droits de l'Homme: Les droits de
l'Homme doivent jtre le socle du Programme de Stockholm et non une simple
rifirence (7.10.2009)

11. Agenda

10 October 2009, Dublin, Ireland
2019 AC: After Copyright
Keynote discussion with Anna Troberg, Swedish Pirate Party

16 October 2009, Bielefeld, Germany
10th German Big Brother Awards

21-23 October 2009, Istanbul, Turkey
eChallenges 2009

24 October 2009, Zurich, Switzerland
Big Brother Awards Switzerland

25 October 2009, Vienna, Austria
Austrian Big Brother Awards

26-27 October 2009, Vienna, Austria
3rd European Privacy Open Space

26 October 2009, Brussels, Belgium
European Commission - Public hearing on orphan works

29 October 2009, Barcelona, Spain
oXcars, the biggest free culture event of all times, 2nd edition

29 October - 1 November 2009, Barcelona, Spain
Free Culture Forum: Organization and Action

3 November 2009, Madrid, Spain
Civil Society Conference: "Global Privacy Standards in a Global World"
Organized by "The Public Voice" coalition

4-6 November 2009, Madrid, Spain
31st International Conference of Data Protection and Privacy

10-11 November 2009, Cambridge, UK
Public Domain Calculators Meeting

13-15 November 2009, Gothenburg, Sweden
Free Society Conference and Nordic Summit

15-18 November 2009, Sharm El Sheikh, Egypt
UN Internet Governance Forum

19-20 November 2009, Malmv, Sweden
First popular European e-government conference

27-30 December 2009, Berlin, Germany
26th Chaos Communication Congress
Deadline for submissions: 9 October 2009

12. 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 visibly 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

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

Information about EDRI and its members:

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