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UK and 12 Other Member States issue Statement on Telecoms Reform Package [UPDATED]
November 23, 2009 by Paladine
Filed under: News
Almost two weeks ago I was sent a draft copy of a statement the UK had sent to the Council of Europe which it wanted the Council to publish on behalf of all member states. The statement was based on how the UK would like the Telecoms Reform Package to be interpreted by Member States (MS) and contained a few paragraphs twisting the intent of ammendments to Article 5(3) of Directive 2002/58/EC with regards to informed consent.

Today I have been sent the final statement which is now supported by 13 Member States along with some explanations of what this all means. My source within EU Parliament states:

The relevant part, not crystal clear but presumably meant to bless the current practice of silent placing of 3rd party cookies etc, is: “However, as indicated in recital 52( a) {66} , amended Article 5(3) is not intended to alter the existing requirement that such consent be exercised as a right to refuse the use of cookies or similar technologies used for legitimate purposes.”

They go on to explain that the lobby pushed the statement to be published on behalf of the entire Council (as mentioned above) but that the final statement has only been made on behalf of 13 states after Council refused to accept it on behalf of all member states:

AUSTRIA
BELGIUM
ESTONIA
FINLAND
GERMANY
IRELAND
LATVIA
MALTA
POLAND
ROMANIA
SLOVAKIA
SPAIN
UNITED KINGDOM

However the introductory text to the statement is almost a carbon copy of the draft UK statement I received over a week ago, so it is clear that the UK have been the driving force behind the declaration.

My source goes on to explain that from a legal standpoint the statement is “without value” as all member states are required to change their national laws to reflect the revised text of Article 5(3) and also enforce those laws. I have also been assured that should a case go before the European Court of Justice relating to issues covered under 5(3) the EU Court of Justice will not take such a unilateral statement by some Member States into account, further:

EU law applies equally across the EU, not differently in different MS. It’s also bad practice – all MS adopted the text unanimously almost a month before the statement and the statement was issued in connection with another Directive.

The only stake the statement has in the overall gameplay is that it:

may give the lobby some leverage when they proceed to discuss the new text and its implementation with national DPAs etc, so the focus is now shifting on transposition of the revised text, possible Commission and DPA guidelines and ultimately enforcement.

In closing, I would like to add that I am dismayed that the UK Government is displaying such blatant regulatory capture even when dealing with matters in the Council of Europe. It has been suggested to me that the IAB may have initiated the call for this statement from the UK Government, who are already the subject of infringement proceedings by the EU Commission for failing to protect consumer’s rights to privacy with regards to Phorm Inc.’s behavioural advertising technology.

It is clear that the UK Government place a higher priority on the convenience of companies to be able to make money from personal data than the fundamental right to privacy of the people who elected it. I am relieved that this statement did not win full support of the Council and represents just under half of the entire Council of Europe – but it is clear that the UK Government have allies within the Council and the public will need to continue lobbying very aggressively in order to continue to be heard.

[UPDATE]

It would seem that Commissioner Vivian Reding is displeased at the attempts by the above Member States to change the interpretation of the ammendments to 5(3). In a speech given yesterday on the matter the Commissioner stated:

Second, the question of cookies. Now the Commission was, like Mr Harbour, surprised that certain Member States appeared to call the agreed text on cookies into question. Let me be very clear: we agreed with Parliament, and we believe that the final text is unambiguous. First, there must be clear and comprehensive information to users on the basis of which second users must give their consent. That is that and that should be applied now in the Member States. I do not appreciate it that after everything has been agreed, some like to manoeuvre in order not to keep 100% to the agreements pacta sunt servanda in politics.

[Source: Approx. 3m 52s into the recording - taken from yesterdays Electronic Communication Networks and Services Debate (Second Intervention) ( 18:05:05 > 19:00:58)]

The Commission seem to be very clear on the matter that informed consent must be obtained, regardless of the statement by the 13 member states listed above.

(I have chosen not to publish the documents in order to protect my source, but I am sure the statement will be published by Council in the near future).

Please make a donation to help support our ongoing lobbying to protect privacy rights. Click the donate buttons at the top right of this page.

Author: Alexander Hanff
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We’re talking about about England…small, impotent, insignificant England. When Latvia enacts a similar law, then I’ll start to worry.
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ROFL Brudda, You clearly dont understand any of this, its not about England, and theres clearly nothing “insignificant” about any of this…

its the United Kingdom, its about the use of Deep Packet Interception in the core networks to collect, collate, and make derivative works of YOUR data, yes your data , just because you perhaps happen to be outside the UK borders or the US boarders for that matter, does Not mean Your data will not be intercepted, collected and passed on to 3rd partys,if you use any websitea etc inside the UK, and that includes the mass data sharing agreements that the UK and the US Govenments have in place right now…

if you were to actually follow the threads and related information come to light in the last year or two it would become clear to even you with a little thought that at its core, this latest move has very little of anything to do with anti-piracy,behavioural advertising, or even anti terrorisminitatives.. these things are merely a convenient label to use so their core initatives can justify Deep Packet Interception to collect and build up their data base initatives, with the added side benefit that 3rd party companies around the world can then trade in its derivative works, and use it to create new commercial income by ‘pirating YOUR data for commercial profits’ ,a criminal offence in the UK and the US, and several other countries BTW….

dismiss it as just “insignificant England” at your peril.

time will tell, but while you sit on your arse doing Nothing and dismissing the obvious implications , others in the EU and the UK understand the Uk’s Nu Labour and conservative backer long term thinking, and see whats coming ,they are trying to make a difference, and if they do you and all the lazy bums that are to stupid to think beyond your next meal never mind actually use your net connection to contact and help inform,or even just officially complain in writing directly directly to your EU reps….
will benefit from these hard working ordinary peoples taking the time to actually find do the right things…. to make a real difference and change the game…

its simple, make it far more costly for/to the Govt people putting these things through than it is to let them get away with it one more time, that means use the laws that already exist against them, and point out every single time they break them…..

using the RIPA criminal law with its prison term upon conviction to actually prosecute the the UK BT Executives for mass ‘commercial interception and piracy for profit’ being the current CPS inactive case in point….

We’re talking about about England…small, impotent, insignificant England. When Latvia enacts a similar law, then I’ll start to worry.

England…bbbbwwwhahahahahahahahahahahahahahahahahahahahahahahah!!!!!!!!!!!!!!!
What a bunch of losers…

https://nodpi.org/2009/11/23/uk-and-12-other-member-states-issue-statement-on-telecoms-reform-package/

“UK and 12 Other Member States issue Statement on Telecoms Reform Package
November 23, 2009 by Paladine
Filed under: News
Almost two weeks ago I was sent a draft copy of a statement the UK had sent to the Council of Europe which it wanted the Council to publish on behalf of all member states. The statement was based on how the UK would like the Telecoms Reform Package to be interpreted by Member States (MS) and contained a few paragraphs twisting the intent of ammendments to Article 5(3) of Directive 2002/58/EC with regards to informed consent.

…
”

https://nodpi.org/forum/index.php/topic,1268.30.html