ID:238241
    Date:2009-12-04 16:44:00
    Origin:09MADRID1161
    Source:Embassy Madrid
    Classification:UNCLASSIFIED//FOR OFFICIAL USE ONLY
    Dunno:09MADRID1052 09MADRID1137 09MADRID1152
    Destination:VZCZCXRO8123
PP RUEHIK
DE RUEHMD #1161/01 3381644
ZNR UUUUU ZZH
P 041644Z DEC 09
FM AMEMBASSY MADRID
TO RUEHC/SECSTATE WASHDC PRIORITY 1536
INFO RUCNMEM/EU MEMBER STATES COLLECTIVE
RUEHLA/AMCONSUL BARCELONA 4256
RHEHNSC/NSC WASHDC
RUCPDOC/DEPT OF COMMERCE WASHDC
    
UNCLAS SECTION 01 OF 04 MADRID 001161 
 
SENSITIVE 
SIPDIS 
 
STATE FOR EUR/WE AND EEB/TPP/IPE 
STATE PASS USTR FOR D.WEINER AND J.GROVES 
STATE ALSO PASS U.S. COPYRIGHT OFFICE FOR M.PALLANTE AND 
M.WOODS 
COMMERCE FOR 4212/DON CALVERT 
COMMERCE ALSO FOR PTO 
 
E.O. 12958: N/A 
TAGS: KIPR, PGOV, SP 
SUBJECT: SPAIN: GOVERNMENT'S PROPOSED ANTI-INTERNET PIRACY 
LEGISLATIVE MEASURES GENERATE CONTROVERSY 
 
REF: A. MADRID 1152 
     B. MADRID 1137 
     C. MADRID 1052 
 
MADRID 00001161  001.3 OF 004 
 
 
 SUMMARY 
 
1. (U)  On November 27, Spain's Council of Ministers approved 
for submission to Congress a draft Law for a Sustainable 
Economy (LES), designed to modernize and restructure the 
economy to make it more competitive.  Septel will address the 
law's scope and major provisions.  One aspect of the draft 
legislation proposes amending existing intellectual property 
laws to facilitate government action to deter Internet 
piracy.  Rights-holders generally support the proposals as a 
first step towards reducing Internet piracy, though music 
industry representatives have expressed disappointment that 
the government did not go further.  All political parties 
except the ruling Socialists have expressed opposition to the 
measures.  Internet users' associations have reacted with 
shrill denunciations.  A manifesto harshly critical of the 
government's proposals that appeared on the Internet early on 
December 2 has reportedly garnered tens of thousands of 
adherents.  Opponents have announced plans to demonstrate 
December 4 in Madrid and other cities.  The Minister of 
Culture met with a group of Internet experts in an effort to 
restore calm, and the Presidency put out a clarifying press 
release.  However, in a December 3 press conference, 
President Zapatero denied any intention on the part of the 
government to close websites and intimated that the draft 
provisions may be rewritten.  Two Vice Presidents and the 
Minister of Justice also made comments that left the 
government's ultimate intentions unclear.  End Summary. 
 
NEW LEGISLATION PROPOSED 
 
2. (U) The anti-Internet piracy provisions anticipate 
recommendations that the government's Inter-Institutional 
Commission (see reftels) is mandated to forward to the 
government by December 31.  According to Salvador Soriano, 
Deputy Director for Information Society Services in the 
Secretariat for Telecommunications and the Information 
Society (SETSI), the Commission reached consensus on the need 
for these legislative changes and decided to attach them to 
the best available legislative vehicle instead of waiting 
until the end of the year.  The legislation seeks to amend 
Law 34 of 2002, the Law on Information Society Services and 
Electronic Commerce (LSSI), and Royal Legislative Decree 
(RLD) 1 of 1996 , which incorporates the Law on Intellectual 
Property (LPI), in ways designed to provide more protection 
for IPR on the Internet.  The primary change would be to 
expand the scope of Article 8 of LSSI. 
 
3. (U) LSSI Section 8.1 empowers "competent organs" to take 
the necessary measures against an "Information Society 
service" that it finds to be acting to the detriment certain 
interests.  These include national defense, public order 
(including criminal investigation), public safety, public 
health, consumer and investor protection, respect for 
personal dignity and non-discrimination, and protection of 
minors.  In such cases, the competent organ may order the 
service interrupted or the damaging material removed.  Final 
Disposition 1 of the draft LES proposes to add "safeguarding 
intellectual property rights" to this list of interests that 
could justify interrupting service or removing offending 
material.  It then adds a new Section 8.2 granting the 
"competent organ" the authority to identify persons 
responsible for IPR-infringing activity - site owners, 
executives, or administrators - by asking Internet Service 
Providers (ISPs) for the information, and requires the ISPs 
to comply with such requests. 
 
4. (U) In support of these measures, LES would also amend the 
RLD 1 to expand the jurisdiction of an existing Intellectual 
Property Commission affiliated with the Ministry of Culture. 
This Commission is responsible for mediating and arbitrating 
IPR-related disputes.  The draft law would establish a 
"Second Section" of the Commission as the "competent organ" 
under LSSI Articles 8 and 11 (which requires service 
providers to cooperate with such entities).  Rules for naming 
members of the Second Section, as well as its specific 
functions and procedures, are to be addressed by a separate 
 
MADRID 00001161  002.3 OF 004 
 
 
regulation. 
 
5. (U)  According to government officials, the Second Section 
would act not on its own initiative but in response to 
complaints about websites that make copyright-protected 
content available without authorization.  It would examine 
such complaints while respecting "the maximum guarantees of 
inherent rights and principles," requesting of the ISPs such 
information as "addresses and ownership of websites" but not 
personal data.  Its objective would be the "re-establishment 
of legality via the removal of content disseminated without 
authorization." 
 
TARGETING THE "SUPPLY SIDE" OF PIRACY 
 
6. (U) Culture Minister Angeles Gonzalez-Sinde and Industry, 
Tourism, and Trade Minister Miguel Sebastian have stressed on 
numerous occasions that the government will not target 
individual users nor criminalize activities such as 
downloading or file-sharing via peer-to-peer (P2P) programs. 
The LSSI language allows the government to interrupt "an 
Information Society service," i.e., a website but not an 
individual user's account.  The government thus disavows any 
intention to implement a graduated response regime such as 
contemplated in recently enacted legislation in France. 
Their specific intent is rather to impede access to 
infringing content.  The Coalition of Creators and Content 
Providers has identified some 200 "commercial scale" websites 
(ref C) that allegedly either house or link to such content 
and that will no doubt be among the first targets of the 
Second Section if and when Congress passes the LES. 
 
CONTENT PROVIDERS GENERALLY POSITIVE, SERVICE PROVIDERS MUM 
 
7. (U) Some rights-holders - especially representatives of 
the music industry - argue that this limitation will leave 
users free to continue to engage in unauthorized P2P 
downloading and thus will not significantly deter piracy. 
They are especially concerned that the government is not 
seeking to address Internet users' underlying attitude or 
behavior, which they see as key to reducing piracy.  However, 
Coalition spokesmen and representatives of several of its 
constituent organizations have expressed support for the 
legislative proposal as a step in the right direction. 
 
8.(U) While many content providers wish the government would 
go further, they also believe these measures probably 
represent the most that can be achieved at this point and 
that accepting them will enhance rights-holders' ability to 
press the government for more stringent measures in the 
future.  Jose Manuel Tourne of the Federation for the 
Protection of Intellectual Property in Audiovisual Works 
(FAP) said the measures could help transform an environment 
in which a substantial segment of the population currently 
believes (or affects to believe) that anything goes on the 
Internet.  He also expressed hope that amending the Internet 
IPR legislative regime would lead the Prosecutor General's 
Office (Fiscalia) to modify its Circular 1 of 2006, which has 
led to much misunderstanding and some adverse judicial 
decisions. 
 
9. (SBU) Neither the Internet Service Providers' (ISPs) 
association, Redtel, nor its constituent companies - 
Telefonica, Orange, Vodaphone, and Ono - have commented thus 
far on the government's proposal.  Some press reports suggest 
the ISPs were caught by surprise and are dismayed.  However, 
SETSI Deputy Director Soriano, who works in a Secretariat 
that maintains close ties with telecoms, said these measures 
had been under consideration for some time and the ISPs knew 
they were coming.  They were discussed in on-again, off-again 
negotiations between the Coalition and Redtel.  When these 
talks failed to reach fruition, the government decided to 
move ahead unilaterally.  In the past year, both Redtel and 
its most influential member, Telefonica, have stated publicly 
that if the government wants to combat Internet piracy, it 
should legislate, and service providers will obey the law. 
It remains to be seen whether the ISPs will support or oppose 
these proposals. 
 
OPPONENTS DECRY CENSORSHIP, ABUSE OF DUE PROCESS, GOVERNMENT 
OVERREACH 
 
MADRID 00001161  003.3 OF 004 
 
 
 
10. (U) Reaction from the Association of Internet Users 
("Internautas") and like-minded organizations, however, was 
immediate and vocal.  On the morning of December 2, a 
10-point Manifesto in Defense of Fundamental Rights on the 
Internet appeared on the Internet and in the first two days 
had reportedly gained tens of thousands of adherents.  The 
Manifesto argues that "copyright cannot be placed above 
citizens' fundamental rights such as privacy, security, the 
presumption of innocence, effective judicial protection, and 
freedom of expression."  Its authors decry the empowerment of 
an administrative entity to do judges' work, and claim that 
bypassing the judicial system violates due process.  They 
protest that the measures, if approved, will damage the 
technology sector and inhibit new cultural creation on the 
Internet, and further argue that content providers should 
abandon their obsolete business model and seek new ways to 
profit from their work on the Internet. 
 
11. (U) Several attorneys specializing in telecommunications 
and Internet law published op-eds opposing the measures, 
arguing that websites should not be shut down without a 
judicial order.  An opinion piece in daily El Mundo by 
self-proclaimed "Surfer's Lawyer" Carlos Sanchez Almeida, 
entitled "Closing Websites: The Sinister Second Section," 
denounces "the systematic contempt with which our political 
class treats the judicial power."  Sanchez further argues 
that the proposed amendments to the LSSI represent 
governmental overreach and open the door to a variety of 
potential abuses.  A headline in daily of record "El Pais" 
proclaimed the birth of an "Internet cultural police," while 
El Publico's headline quotes an attorney as saying that "The 
door to censorship on the Web has opened."  Other 
commentators were somewhat more measured, noting that the EU 
telecom passage recently approved by the European Parliament 
will not require a court order for cutoff of Internet access, 
but rather "a fair and impartial process that includes the 
user's right to be heard," and note that the proposed 
measures are considerably less severe than those in place in 
the UK, France, and Germany.  A few columnists questioned 
what all the fuss was about if the government wanted to shut 
down operations that were openly distributing stolen goods. 
 
12. (U) Opposition parties and some small parties nominally 
allied with the government unanimously criticized the 
proposed anti-Internet piracy proposals.  Perhaps most 
significantly, a spokesman for the main opposition Popular 
Party (PP) accused the government of proposing the creation 
of a cultural police force that would "bring back censorship" 
and turn the Minister of Culture into "the Big Brother of the 
Internet."  He added that "a revolution is being forged on 
the Internet against the government, and we have to pay 
attention as if it were taking place in the streets."  The PP 
official likened suspension of websites to "governmental 
kidnapping of a communications medium."  The United Left (IU) 
declared itself "belligerent" with respect to the proposals 
and argued that links to unauthorized content are in fact 
legal.  Weakened by the economic crisis, the government has 
no stable majority in Congress and will need to round up 
votes from smaller parties to pass this law.  Passage of the 
LES is a high priority of President Zapatero, who describes 
it as reorienting the Spanish economy to a more sustainable 
model.  The government is expected to ask Congress to address 
the legislation expeditiously. 
 
GOVERNMENT INTENTIONS UNCLEAR 
 
13. (U) Culture Minister Gonzalez-Sinde appeared in the 
Senate December 2 to explain the proposals and met on 
December 3 with a group of bloggers, journalists, and 
Internet professionals and experts who asked her to remove 
the proposals from the draft legislation.  After a two-hour 
debate, the Minister reiterated that the government intends 
to move ahead.  President Zapatero's office (Moncloa) issued 
a press release to explain and clarify various aspects of the 
proposed measures, noting they are fully compatible with the 
EU telecom package.  Moncloa cited the importance of IPR 
protection to the continued  development of Spain's essential 
cultural industries as a motive force behind the initiative, 
and called piracy an act of illegal competition.  Moncloa 
also promises that affected parties will be able to appeal to 
 
MADRID 00001161  004.3 OF 004 
 
 
judges if they believe their Constitutional rights are being 
abridged by the IPR administrative process. 
 
14. (U) In a conversation with Econoff, SETSI Deputy Director 
Soriano said the strident opposition was to be expected and 
would not deter the government from moving the legislation 
forward on a priority basis.  Likewise, Carlos Guervos, 
Deputy Director for Intellectual Property at the Ministry of 
Culture, asked about the manifesto and other shrill 
commentary, quoted the proverb that "the dogs bark but the 
caravan moves on," and added that now was the time for his 
Ministry "not to go wobbly." 
 
15. (U) At a press conference late on December 3, President 
Zapatero appeared to distance himself from the legislative 
proposal, saying that "Nothing will be closed, no web and no 
blog.  If the draft law has been interpreted (as containing) 
some possibility of closing one of the spaces of the sites 
that is on the web, I'm telling you now that there's no way. 
If something needs to be cleared up about the wording, it 
will be done...and of course, I'm giving my opinion, freedom 
of expression will always prevail."  Zapatero went on to 
express support for strong government action to protect 
intellectual property, "because if we don't, we'll be without 
intellectual strength, without intellectual creation."  First 
Vice President Maria Teresa Fernandez de la Vega stated that 
"there has always been judicial control and there always will 
be," suggesting that the government may seek to replace the 
Second Section's administrative review with a judicial 
process.  Justice Minister Francisco Caamano said the closing 
of websites should include "judicial authorization and 
control."  Further confusing the matter, Second Vice 
President (and Minister of Economy and Finance) Elena Salgado 
said the Congress could try to "perfect" the draft 
legislation but that "a judicial order is necessary to shut 
down Internet access but not to suspend it."  One contact 
told us that the Council of Ministers will address the 
controvery and the draft legislation during their weekly 
meeting today. 
 
COMMENT 
 
16. (SBU) As this debate continues to unfold, post notes that 
on December 3, the Ministry of Health and Social Policy 
reportedly began the process of taking down four websites for 
selling medication illegally and without prescription.  The 
Health Ministry's actions appear uncontroversial.  Government 
authorities take action every day that in some way regulates 
or restricts Internet activity, and the society seems no less 
open for their efforts.  At the same time, distrust of the 
government's good intentions and of its ability to deliver 
good results run high.  Thus, fears of censorship and 
invasion of piracy, while expressed in this instance in 
alarmist and scare-mongering fashion, remain very real to 
some.  The government faces a serious challenge in trying at 
long last to undertake concrete measures to protect IPR 
online, and the outcome is uncertain.  End Comment. 
CHACON