Calls for ISPs to filter content could be illegal, EU council documents suggest

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Last week justice ministers from across the European Union called on ISPs to conduct voluntary censorship of online content—but documents in preparation for a meeting of telecoms ministers suggest such a move could be illegal.

The documents, prepared by the Latvian presidency of the Council of the EU, note that calls to allow Internet service providers to block or filter content in the “public interest” as part of a proposed net neutrality law could violate privacy laws that protect the confidentiality of communication.

The Council, along with the Commission and the Parliament, is one of the EU’s three lawmaking bodies. The member states take turns as president of the council: Latvia took over from Italy for its six-month stint on Jan. 1.

Different ministers participate in each meeting of the Council: net neutrality is on the agenda for a forthcoming meeting of telecommunications ministers, and on Tuesday the presidency released a document outlining issues that need to be addressed.

The Council is in the process of determining what to do with the proposals of the Commission and the Parliament to enshrine net neutrality in EU law. While the Parliament wants a strict form of net neutrality that treats all traffic equally and without discrimination, the Council is trying to get some traffic discrimination into the draft.

One of the main issues raised by the new presidency is the legality of ISPs blocking or filtering certain content on a self-regulatory basis in pursuit of recognized public interests. A request to allow Internet service providers to do this “appears to raise certain legal issues relating to the Charter of Fundamental Rights of the European Union and/or the 2002/58 ePrivacy Directive, including with respect to confidentiality of communications,” the presidency wrote, adding that it is unsure if these issues can be resolved.

The recognition that it might be illegal to block or filter content was warmly welcomed by European digital rights group EDRi, which has for the past five years argued that it is illegal under EU and international law for states to encourage Internet companies to block or filter traffic outside a clear legal framework.

“This recognition is particularly important, taking into account the EU’s drive for private, ad hoc, arbitrary policing of the Internet by private companies—something that was already being pushed, but policy makers are now exploiting the Paris attacks for this purpose,” said Joe McNamee, executive director of EDRi in an email.

He was referring to plans by EU justice ministers to work closely with ISPs in order to quickly remove online material that “aims to incite hatred and terror” in the wake of shootings at the offices of the satirical magazine Charlie Hebdo in Paris.

McNamee wasn’t entirely happy with the net neutrality draft proposal revealed in the Latvian working documents, which he described as still “extremely confused and deeply destructive to net neutrality.”

The Latvian presidency plans to discuss changes to three articles of the proposed text at a meeting of the Council’s working party on Jan. 27, which will prepare documents for a meeting of telecommunications minsters.

Latvia has proposed completing the definitions in Article 2 with one for an Internet access service, which it defines as “a publicly available electronic communications service that provides access to the Internet ... irrespective of the network technology and terminal equipment used,” in order to distinguish it from other electronic communications services provided over the same infrastructure that require a “specific level of quality”.

Changes to Article 23 will also be discussed. This reduces the number of grounds on which providers can block content from six to four. The article further stresses the right of users to an open Internet and the freedom of electronic communication providers to offer services other than Internet access over their infrastructure, provided that there is “no demonstrable negative impact on the availability and general quality of internet access services.”

Article 24, which aims to regulate how national authorities can monitor service providers’ compliance with the rules set out in Article 23, will also be on the agenda.

In addition to discussion of the proposed modifications to the text, and the legality of allowing ISPs to block content, the Latvians will also sound out member states’ support for a ban on positive price discrimination in telecommunications services across the EU.

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