The OpenNet coalition, which is managing the Blackout Europe site, today reacted to claims made by Mr. Malcolm Harbour, MEP.

The following quotes are taken from a statement released by Mr. Harbour on the 05-May-2009.

“According to rumours in cyberspace the proposed new rules will impose conditional access to the Internet, providers will be able to limit the number of site you’re visiting and Skype could be blocked. Is Internet freedom really at risk?

That’s pure fantasy. The Telecoms package has never been about anything to do with restrictions on the Internet. I am astonished to see this remarkable text from Black-out Europe. There is absolutely nothing in this proposal that says anything about that.”

Either Mr. Harbour is deliberately attempting to mislead or does not comprehend the impact and consequences of his amendments. This is astonishing in light of the fact that Mr. Harbour is a native English speaker and has inserted words like “limitations” and “conditions” into his amendments.

Also in a letter from MEP Roger Helmer, citing a conversation with Mr. Malcolm Harbour: “This would mean that if Internet Service operators decide to restrict access to certain services (which is the current situation, for example, where Skype is currently blocked on some mobile phones), the consumer could then decide not to use that service provider and opt for another one, which does provide Skype.” (letter from MEP Roger Helmer, 14 April 2009, speaking about the Universal Services Directive). Therefore blocking of applications is already foreseen by the same MEPs who support the Harbour report. The core of the problem is that competition law deals only with market dominance, and cartels in a clearly defined market (Articles 81 and 82 of the EU Treaty). It cannot deal with situations where content, applications or services are blocked by a network operator, or where a network operator does a preferential deal with one content provider to the disadvantage of all others. Clearly this, as an option, is nonsense. Providers have a lock-in period of up to 24 months.

Finally, Mr. Malcolm Harbour, speaking at an EU conference hosted by the Czech Presidency on April 16th:
“On the question of network neutrality, so called, which I think has been vastly over-inflated in all of this debate, the Commission has quite rightly identified the fact that there is a potential – a potential – for operators to use differing quality of service provision in a discriminatory way, for example, by giving a higher capacity or better service quality to their own services as opposed to those of competitors. The commission made a proposal, the council amended that and we agreed.

But the fact remains that any other service limitations which are anti-competitive, and they could certainly include restrictions on access to competitive services like voice over IP, have and can be dealt with by the regulators under the existing framework of competition and access regulation. And that is clear. But what is fundamental is that customer needs to know if there are service limitations and customers may wish to buy a package with service limitations if it is cheaper…There is nothing illegal about service limitations, provided they are not anti-competitive… ” ; timing 02:02:26 – 02:04:49

Network neutrality is not a over inflated question, it is the base of the Internet. It is the question. One thing is differentiating quality, as speed or bandwidth and a different one, giving limited access.

Once again it is Mr. Harbour who is attempting to equate restrictions to limitations; he admits that some restrictions, as long they are not anti-competitive, are acceptable. He admits that restricting access to a Voice-over-IP service could be anti-competitive, but restricting access to other services or applications is not a problem, possibly because there is no provision for a regulator to deal with it. Having a service limited package means having your right to receive information is limited, and it is a restriction to your freedom of expression. However, when a limitation or restriction goes against freedom of expression, telecommunications regulators have no power to do anything.

The legislative process leading up to the “compromise” amendments has been about artificially creating a difference between limitations and restrictions, and all that process has been obfuscated by Mr. Harbour’s explanations. Essentially, restrictions on access may mean 3-strikes and can only be imposed by a judge. Limitations are a restriction imposed from the beginning, decided not by a judge but by the access provider (maybe with help with some sectors with a vested interest in the provision of “lawful content”).

“One of the last outstanding issues during the talks between MEPs and Ministers was measures regarding access to electronic communications services. How do the new proposals concern users’ internet access and use?

This directive package has never been about copyright enforcement. The Parliament cannot impose on a country conditions about how it organises its judicial system. That is a basic element of subsidiarity.”

Who talked about copyright enforcement? Why does he refer to copyright enforcement when he is asked about last talks between MEPs and Ministers? This statement clearly is in contrast with efforts by the French government to legitimise in the EU the Hadopi laws, commonly known as “3 strikes and you’re out”.

“You might choose to have a service-limited package; nobody has ever suggested that we have a general rule that if you buy an electronic communications service package you will have access to everything. That’s like saying that if you have a bookshop you are legally obliged to stock every book.”

This clearly demonstrates that Mr. Harbour proposes to limit access to the Internet or completely misunderstands the basic fundamental concepts of the internet. These concepts have been in place since the inception of the Internet, if they are to be changed then the least we clearly expect is honesty and transparency. Electronic Communication Providers have “conduit” status, their function is to move data from consumer to an endpoint, like a website. Clearly the Internet is not a bookshop, it is more like a public library, however the doorman can not decide which rooms we can visit and which books we can read. On the Internet, net neutrality guarantees consumers access to whatever site they wish to visit.

According to Tim-Berners Lee, inventor of the World Wide Web, Net Neutrality is simply defined as follows: if I pay for an Internet access with a certain QoS, and you pay for an Internet access with the same or higher QoS, me and you can connect. This is the basis of the end-to-end connectivity capacity of the Internet. Providers have so far furnished the end-to-end connectivity under a legal regime of “mere conduit”, as stated by Directive on the Electronic Commerce 31/2000/EC, which means that they are not held responsible for the contents which flow in their network. They are not responsible because they do not select the services they give access to, they only transport signals. This is the basic principle of the Internet as we know it.
Without Net Neutrality, we would not even have the World Wide Web, not to talk about even more advanced technical features like distributed boards and p2p technology. It’s Net Neutrality which allows bloggers, anywhere in the world, to compete on an even playing field without any editorial impositions. Net Neutrality grants freedom of information and freedom of speech and allows start-ups to play on an even playing field with giant media companies. Net Neutrality does not mean that providers are obliged to give users the highest QoS and bandwidth regardless of price. It simply means that providers must guarantee end-to-end connectivity regardless of price.

The vision of the network explained by Mr. Harbour with the “bookshop analogy” is not a known vision or analogy for the Internet, it is a series of networks which are interconnected, except for very basic services. The Internet is the network of networks.

“How much should the Internet be policed, if at all?

Clearly the internet has to be policed because it is being used for illicit activities such as terrorist activities, child pornography, child trafficking and so on.The basic principle is that internet always has to be a free internet, but it is not completely regulation free.”

Not completely regulation free? So regulation is the key concept here… what form of regulation? Blocking Skype? Blocking various unsavoury websites? Who will pay for this? We’d just like to remind Mr. Harbour that countries that engage in this practice are usually totalitarian regimes. Have our MEPs become so divorced from reality that they care more for large US corporations than for the consumers they are empowered to protect? They seem to want to impose censorship on EU citizens because allegedly somebody, somewhere “might” commit a crime? So instead of due legal process they would prefer to block all websites that are deemed to be “unlawful”. Who will decide which of these sites are illegal? Media Companies, Scientologists, religious groups or perhaps MEPs themselves?

In any case, the Telecoms Package is not the place to regulate the Internet and regulation on the Internet can not be more restrictive than regulation in the offline world. Child pornography and other disgusting activities already have clear remedies and guidelines in place to be dealt with. To include all normal people in the ranks of those who perform these clearly unsavoury or illegal activities, is demeaning in the extreme and is also attempting to blackmail all ordinary users into guilt by association. This is emotional blackmail.

Limitation amendments
There is a seemingly striking similarity between the Mr. Harbour’s amendment and the UK amendments.

In a Report from Mr Harbour, released on 23 February.
Amendment 128, tabled by Mr Harbour, is about what access providers have to put in their contracts with Internet subscribers – it includes the text “limitations regarding access to and/or use of services and applications”.

Amendments Documents
Here are the consumer amendments “championed by Mr. Malcolm Harbour”: UK amendments, which were also included in the Council Amendments and seek to limit access to the Internet. We ask you to judge for yourself if Mr. Harbour is telling the truth or attempting to mislead the citizens of Europe.

Furthermore this is one of the amendments tabled by Mr. Malcolm Harbour

“Article 2a. This Directive neither mandates nor prohibits conditions, imposed by providers of publicly available electronic communications and services, limiting users’ access to and/or use of services and applications, where allowed under national law and in conformity with Community law, but does provide for information regarding such conditions”. This clearly, in our opinion, allows for limitations to be imposed, if they are not prohibited then they are allowed.

Finally, with all the due respect, we would like to remind Mr. Harbour, that the OpenNet coalition, which operates the Blackout Europe site, is composed of NGOs from nearly all Member States, lawyers, analysts, consumers rights association, telecommunication experts and almost 200 Internet Service Providers; therefore it is at least misinformed to define our analysis as “pure fantasy”. As we showed above, the analysis of the Directives which compose the Telecoms Package is substantiated and strictly based on legal text.

ABOUT the Europe wide OpenNet coalition

La Quadrature du Net – France – – Jérémie Zimmermann
The Free Knowledge Institute – The Netherlands – – Wouter Tebbens
Exgae – Spain – Simona Levi –
ISOC-ECC – Pan-european – Christopher Wilkinson –
EBLIDA – Pan-european – Andrew Cranefield –
European Digital Rights EDRi – Pan-european – Niels Elgaard Larsen –
FFII – Pan-european – Iván F. Villanueva –
Open Rights Group – UK – Jim Killock-
Föreningen fri kultur & programvara.- Sweden – Jonas Öberg
Asociación de Internautas – Spain – Víctor Domingo –
AK Vorratsdatenspeicherung – Germany – Ralf Bendrath
e-frontier – Bulgaria – Bogomil Shopov
FoeBuD.- Germany – Florian Glatzner
Center for Media and Communication Studies (CMCS) – Hungary – – Laura Ranca
Associazione Scambio Etico – Italy – – Paolo Brini
Altroconsumo – Italy – – Marco Pierani
NNSquad Italia – Italy – – Vittorio Bertola
Istituto per le Politiche dell’Innovazione – Italy – – Guido Scorza
P2P Foundation – Pan-european – – Celia Blanco and Michel Bauwens
Associazione per il Software Libero – Italy – Marco Ciurcina
Hispalinux – Spain – Jorge Fuentes
NEXA Center for Internet & Society al Politecnico di Torino – Italy – Juan Carlos de Martin, Marco Ricolfi
Aktion Freiheit statt Angst e.V. (i.Gr.) – Ricardo Cristof Remmert-Fontes
Ireland Offline – Ireland – Eamonn Wallace
Assoprovider – Italy – – Giovanbattista Frontera

For more information on the organisation, please visit the Blackout Europe website at
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