Last month, BEUC and EDRi sent a joint call for action to Vice-President Kroes in order to demand a stronger protection of network neutrality in Europe. We called on the Commission to put an end to the current experimentation by certain European access providers with blocking, filtering and throttling of services which are extremely harmful to both the economy and fundamental rights.
In her response dated 8 May, Neelie Kroes seems non-committal regarding the policy direction she will take in the upcoming recommendations. The extreme vagueness of the language may be an indication of heated internal discussions in the European Commission.
To begin with, she states that “[t]raffic management should not be used to limit consumer choice. Rather, I want every ISP to offer full, best effort Internet access products to its customers.” This a welcome announcement, as we have always advocated for the prohibition of current practices of some ISPs that stifle the open internet for the benefit of narrow sectoral interests. However, Kroes’ wording does not preclude a bodged policy response, where restrictions are possible, as long as there is some form of open access to the Internet (regardless of the cost of such a service) – her so-called Champagne approach. In light of her article published in Libération in January 2013, this could also be interpreted as granting ISPs the right to offer cheaper but restricted types of Internet services in addition to offers that are unrestricted. This would end the basic principle that anything put online in Europe would be available to everyone on the Internet in Europe – a catastrophic and unnecessary restriction on the fundamental right to the freedom to impart information.
However, she did not break with tradition and emphasised again the importance of the (failed) approach of providing transparency and the ability to switch service providers: “The European Commission is, therefore, preparing substantial recommendations which will address transparency and switching issues will also address specifically the responsible use of traffic management practices.”
It remains to be seen what “responsible” actually means. Moreover, as our initial letter states, there is a large body of evidence that a fragmentation of the digital single market can never be remedied only by recommending transparency and switching. She also claimed to be in favour of a harmonised approach to the question of guaranteeing net neutrality. Recognising this necessity is most welcome, since true harmonisation can only be achieved via a legislative approach – unless the approach is to demand the repeal of the net neutrality laws already in place, in countries such as the Netherlands.
Traffic management measures, unless temporary, necessary and exceptional, will continue to fragment the market. Even if measures are not necessarily anti-competitive, they lead to a prioritisation for certain types of traffic, create barriers to market entry and make it impossible for new services to reach all potential customers. Commissioner Kroes’ vagueness, despite her repeated statements on the need for a single online digital market and four years after stressing her commitment to net neutrality is almost as surprising as it is disappointing.