Monthly European Policy Report (EuroISPA)

Our partner, the European Internet Services Providers Association (EuroISPA) provided us the following European policy recap for April 2019.

Overview

The current European Parliament gathered in April 2019 for the last time, as the EU elections in May 2019 will renew it and mark the beginning of the 9^th legislature (2019-2024). During these last plenary meetings, MEPs adopted the European Parliament’s position on the proposal for a Regulation on the prevention of terrorist content online. The final text generally improves the European Commission’s proposal, as it narrows the down the scope and aligns the text with the current EU intermediary liability regime. The European Parliament was also published additional non-legislative “Working Documents” on its proposal for a Regulation on cross-border access to electronic evidence. However, trilogues between the three main EU institutions are not expected to commence before 2020. In other developments, also the Council adopted the extremely controversial Copyright Directive reform, bringing the legislative process to an end. Member States will now have 2 years to implement the new rules nationally, providing EuroISPA members with a window of opportunity to work towards a national implementation which would improve the text from the point of view of the industry.

Intermediary liability

Terrorist content online: European Parliament adopts position

On 17^th April 2019, the European Parliament adopted its position on the Terrorist Content Online proposal with 308 votes in favour, 204 against and 70 abstentions. The next European Parliament, to be elected through the EU elections on 26^th May 2019, will be able to start trilogue negotiations with the EU Council and the European Commission on the basis of this position, as soon as September 2019. The European Parliament’s final  position significantly improves the European Commission’s text, as it narrows down the definition of hosting service providers, deletes provisions on referrals, ensures consistency with the E-Commerce Directive, and softens the wording on “proactive measures”, which become mandatory exclusively after the hosting service provider has received a substantial number of removal orders.

Actions:

• Secretariat led a joint industry letter ahead of the vote.
• EuroISPA co-signed an additional joint letter with members of civil society.
• Secretariat shared the position of EuroISPA via email with all the MEPs from the ALDE and S&D political groups ahead of the vote.
• Secretariat promoted EuroISPA’s position with several MEPs’ offices.
• EuroISPA published its report on “Priority Flagging Partnerships in Practice”, where the information was gathered through a written survey shared amongst EuroISPA Forum Members and external companies.

Innovation and growth

Council adopts the Copyright Directive reform

Following the adoption of the Copyright Directive reform by the European Parliament’s Plenary in March 2019, the Council of the European Union adopted the file on 15^th April 2019, bringing the procedure to a close. 19 Member States voted in favour, while 6  voted against and 3 abstained. Finland, Italy, Luxembourg, the Netherlands and Poland published a statement, expressing their regret that the text does not strike “the right balance between the protection of right holders and the interests of EU citizens and companies”, as well as its lack of legal clarity. Estonia criticised the text in a separate statement. In terms of next steps, the EU Member States will now have 2 years to transpose the Directive into national legislation. As Art. 17 of the text foresees that the European Commission will organise stakeholder dialogues with platforms and rightsholders in order discuss best practices, EuroISPA will strive to participate in them and continue to coordinate with the Copyright4Creativity Coalition to favour a favourable implementation of the text.

Cybersecurity and cybercrime

Shadow Rapporteurs publish final Working Documents on e-evidence proposal

In April 2019, in the context of the ongoing discussions on e-evidence in the European Parliament, Shadow Rapporteurs MEP Romeo Franz (Greens, Germany) and MEP Ignazio Corrao (EFDD, Italy) published two further Working Documents on the proposal. The Rapporteur on the file, MEP Birgit Sippel (S&D, Germany), has opted not to work towards a European Parliament position during this legislature, but rather to approach the Commission’s proposal through a series of Working Documents, which are non-legislative in nature, but each analyses a specific aspect of the proposal. The two papers focus on safeguards and remedies (here, here and here) and on the enforcement of Production and Preservation orders (here). In terms of next steps, trilogue negotiations are not expected to commence before 2020, as the next Parliament will be tasked with drawing up its position, necessary to enter into inter-institutional negotiations. 

Actions:

• EuroISPA President Maximilian Schubert attended a UNODC presentation in Vienna on their newly published “Practical Guide for Requesting Electronic Evidence Across Borders”

Data Protection

EDPB guidelines on the scope and application of Article 6(1)(b) GDPR

On 9^th-10^th April 2019, the European Data Protection Board adopted guidelines on the scope and application of Article 6(1)(b) GDPR (to be released) in the context of information society services. The Article establishes that processing of data is lawful when it is necessary for the performance of a contract to which the data subject is party. In its guidelines, the Board makes general observations regarding data protection principles and the interaction of Article 6(1)(b) with other lawful bases. In addition, the guidelines will contain guidance on the applicability of Article 6(1)(b) in case of bundling of separate services and termination of contract.

EuroISPA participates to EDPB stakeholder event on controllers and processors

On 25^th March, Irvette Tempelman (ICT Nederland) attended a stakeholder event held by the EDPB on behalf of EuroISPA. The event focused on the topic of controllers/processors within the GDPR, and was intended to provide input for the planned update of the Article 29 Working Party’s opinion on the concepts of controller and processor. The three main topics which were discussed during the event were the concepts of controller/processor, the processor’s obligations, and the issue of joint controllership. The membership held a call  upfront to discuss the key points to put across and highlight during the meeting. At the event, EuroISPA was represented by Irvette Tempelman (ICT Netherland).

Annual Report

EuroISPA published its Annual Report for 2018, which documents the achievements and engagement of the Association over the course of last year. It provides an overview of the Association’s actions and outreach in 2018, from terrorist content online and ePrivacy, from data retention to the e-evidence proposal. The report includes an overview of the successes achieved during the last year and a short retrospect by Oliver Süme, after having served 6 years as EuroISPA’s president.