By Joe McNamee

Fifteen months after the European Parliament voted in favour of clear protection for net neutrality in Europe, a messy, ambiguous “deal” was reached around 2am in the morning on 30 June. In the coming days, negotiators will finalise explanatory notes (known as “recitals”) which may add some clarity. However, the apparently deliberate ambiguity of the text agreed so far does not create much hope.

If approved by the Member States in the Council and the European Parliament, we will have to wait for at least a full year before courts and regulators will start giving meaning to the agreement.

“What is the point of agreeing to adopt legislation that makes the legal situation less clear than it was before? Now we have text which could mean almost anything – we did not need more legal uncertainty,”

said Joe McNamee, Executive Director of European Digital Rights.

Key points of confusion:

  • Distinction between “specialised services” and the public internet. The “fast lane” services can only get this status if this is “necessary”. However, the current draft explanatory recital defines “necessary” so broadly that anything that is not a “general prioritisation” of traffic could, in principle, be covered. (Recital 11, Article 3.5)
  • The scope of the Regulation is defined in a way that does not fully cover the key issue of “specialised services”. (Article 1)
  • Not alone does the Regulation seek to define what a “legal obligation” for blocking/filtering might be (does this really need to be explained?), the definition is so badly drafted that it could cover activities that are not legal obligations – “measures giving effect to such Union or national legislation, in compliance with Union law, including [i.e. not limited to] with orders by courts or public authorities vested with relevant powers;” (Article 3.3.a). The current draft recital contains a 90-word sentence that has no obvious meaning.
  • Even though a draft recital explains that “specialised services” are only possible if they do not have a “negative impact of the provision of such services on the availability or quality of internet access services”, there is an obligation for Internet access providers to provide details of the “impact on the same end-user’s internet access services”. What is the agreement – that they can have an impact or they can’t? (Recital 11a and Article 4.3.c)

The “deal” was achieved after three months of “negotiations” between the EU Council (the Member States of the EU) and the European Parliament. At every stage, the Council simply refused to engage in a dialogue. Then, racing to meet the arbitrary deadline created by the end of the Latvian Presidency of the EU Council, this chaotic, sub-standard text was provisionally agreed.

Now that our political “leaders” have decided that they cannot make a decision, we must wait for unelected judges and regulators to do the hard work.

This is “just” a provisional agreement. First, the explanatory recitals need to be finalised. Then, the EU institutions need to decide if they are really prepared to create such legal uncertainty for European citizens and business. This will become clear in the coming weeks.

Please find our summary of recent developments here:
https://edri.org/net-neutrality-document-pool-2/
https://edri.org/net-neutrality-primary-document-source/

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