As background, a dispute arose concerning draft Amendment 138/46 of the Telecoms Reform Package, which would have made it impossible for states to enact a three-strikes law to disconnect internet users. Delegates from the European Parliament and the Council of Telecoms Ministers negotiated a compromise, which is the Internet Freedom Provision now article 1(3)a of the Framework Directive, which will be incorporated into national legislation in every EU country by May 2011. A closer look at article 1(3)a reveals that it might subject private regulatory bodies such as ISP associations and the Internet Watch Foundation to scrutiny under ECHR principles. The text of article 1(3) is as follows:
“Measures taken by Member States regarding end-users’ access to or use of services and applications through electronic communications networks shall respect the fundamental rights and freedoms of natural persons, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and general principles of Community law.
Any of these measures regarding end-users’ access to or use of services and applications through electronic communications networks liable to restrict those fundamental rights or freedoms may only be imposed if they are appropriate, proportionate and necessary within a democratic society, and their implementation shall be subject to adequate procedural safeguards in conformity with the European Convention for the Protection of Human Rights and Fundamental Freedoms and general principles of Community law, including effective judicial protection and due process. Accordingly, these measures may only be taken with due respect for the principle of presumption of innocence and the right to privacy. A prior fair and impartial procedure shall be guaranteed, including the right to be heard of the person or persons concerned, subject to the need for appropriate conditions and procedural arrangements in duly substantiated cases of urgency in conformity with the European Convention for the Protection of Human Rights and Fundamental Freedoms . The right to an effective and timely judicial review shall be guaranteed.”
While this provision was written with the three-strikes laws in mind, it is phrased broadly enough to encompass filtering by ISPs as such filtering restricts the right to freedom of expression by affecting ‘access to or use of services of applications through electronic communications networks’. Under this provision, Internet sanctions must satisfy the ECHR criteria that they be appropriate, proportionate and necessary in a democratic society. One commentator noted that the final article 1(3)a is different than the original amendment 138, because the original sanction can be issued by a private body, such as France’s HADOPI, but that there is a right of judicial review. This is significant. It may be correct that the amendment only applies to states and not to private bodies, however, by subjecting the body to judicial review on the basis of ECHR principles, such bodies must govern themselves pursuant to ECHR principles or risk having their decisions be overturned on appeal. While UK courts are bound to consider the Human Rights Act in any of its proceedings anyway, this is a more direct (and explicit) line to judicial consideration, as otherwise, the complainant would have to satisfy administrative law principles for judicial review looking at such factors as the public function of the body in question. Additionally, article 1(3)a might invite greater scrutiny of their complaints mechanisms as it requires that non-judicial procedures be fair, impartial and include the right to be heard of the affected persons. The IWF might face difficulty with this hurdle because website owners might not be aware that their site has been blocked. The right to be heard is a step ahead as the affected person doesn’t know he or she has anyting to be heard about in the first place.