The Internet has changed our society, enhanced our freedoms and our economy. One of the main reasons for this is the openness of the Internet – anyone has the potential to communicate with anyone, without permission and without discrimination. This is the essence of the neutral, open Internet. This is net neutrality.
This openness is now under threat, as telecoms operators seek to restrict Internet access and thereby boost their short-term profits – replacing neutrality with restrictions, barriers and complexity.
We have waited for years for concrete proposals to enshrine the net neutrality principle in European Union law. Since 2010, there has also been an increasing number of calls from the European Parliament to guarantee net neutrality. Finally, in September 2013, the European Commission has proposed a draft Regulation which aims at protecting the open internet in Europe. Vice President Neelie Kroes repeatedly stated that this proposal would include the “right to net neutrality”.
Unfortunately, the draft Regulation (pdf) proposed by Commissioner Kroes poses a serious threat to the internet as we know it.
We have analysed the three most important loopholes, which we have listed below.
The good news is that it only takes a few modifications to turn the Commission’s proposal into a meaningful means of protecting net neutrality, thereby ensuring that the Internet remains a barrier-free single market and a unique platform for social and cultural activity and democratic discourse.
We have also analysed the draft proposals made by the different Committees:
1. What is net neutrality?
Net Neutrality is the principle that every point on the network can connect to any other point on the network, without discrimination on the basis of origin, destination or type of data. This principle is the central reason for the success of the Internet. Net Neutrality is crucial for innovation, competition and for the free flow of information. Most importantly, Net Neutrality gives the Internet its ability to generate new means of exercising civil rights such as the freedom of expression and the right to receive and impart information.
2. Specialised services
Internet companies, quite reasonably, claim the right to provide specialised network services – such as high definition video at guaranteed speeds for precise industrial applications. As long as these services are run separately from the Internet and do not interfere with internet quality, this is clearly not a problem.
Currently, the proposed Regulation does not give a clear definition of specialised services. It would allow for the possibility of a “specialised service” to be interpreted as meaning any kind of online service. This would lead to the creation of a two-tiered internet, where certain services would be prioritised and others would be pushed into the slow lane. As a consequence, this would restrict the freedom of communication and the possibilities and incentives for innovation. (Article 2.15)
Example: Many mobile operators already offer unmetered access to Facebook, with everything else being subject to a payment based on the volume of downloaded data. If the definition of a “specialised service” allows this kind of offer, it will restrict the possible market available to potential competitors, restricting choice and innovation in the long run.
What we need is a clarification to ensure that the “service” in question is not functionally identical to an online service and that it is run on a network that is entirely separate from the public internet. The Body of European Regulators (BEREC) definition states that such services have to be separate from the public best effort internet and shall be only provided within the European electronic communications provider’s network. Not alone is the Commission’s proposal less clear than this definition, but it adds qualifiers like “substantially”, “general” and “widely”, which are not defined and can clearly only generate legal uncertainty.
3. The “freedom” of end-users
The text proposed by the European Commission would give users the “freedom” to choose discriminatory services. This “freedom” will ultimately be negative for internet users and negative for the broader online innovative environment (Article 23).
Example: It has been estimated that British consumers alone pay approximately 5 billion pounds a year too much, due to their “freedom” to choose between numerous confusing service options.
What we need is to replace “shall be free” with “have the right” and to ensure that the text does not allow discriminatory services to be offered by internet access providers.
4. “Prevent or impede serious crime”
There is no definition of “serious crime”. It is also unclear what “measures to prevent” would entail. However, it is clear from the context that to “prevent or impede serious crime” means ad hoc interference with online communications by internet companies, without a legal basis or a court order. (Article 23.5).
Example: In the UK, for example, voluntary measures are already being carried out by ISPs to prevent individuals leading to lawless blocking of a range of legal online services. In 2012, this led to the accidental blocking of the website of the French civil rights group, La Quadrature du Net.
What we need is a deletion of the dangerous exception for arbitrary interferences in communications traffic flows of reasonable traffic management, as this provision is in obvious violation of Article 52 of the Charter of Fundamental Rights.
Timeline in the European Parliament:
|Draft report: 20/11
||Draft report: 16/12
||Draft report: 28/11
||Draft report: 11/11
||Draft report: 14/11
|Deadline for amendments: 04/12
||Deadline for amendments: 18/12
||Deadline for amendments: mid January
||Deadline for amendments: 03/12
||Deadline for amendments: 17/12
|Consideration of AMs:
||Consideration of AMs:
||Consideration of AMs:
||Consideration of AMs: 09/01
||Consideration of AMs:22-23/01