EU Commission discards criticism of net neutrality enforcement

On 30 April 2019, EDRi and 31 other civil rights organisations sent an open letter to the EU Commission and BEREC. The letter criticised the lack of enforcement of current net neutrality rules in Europe. The signatories also emphasised that the EU finally needs to act against the widespread use of zero-rating practices. Zero-rating favours internet traffic from certain companies by billing it to customers at a lower (zero) rate while discriminating against everybody else. The letter also highlighted that many EU member states do not impose effective penalties against infringers of net neutrality.

Only two weeks later, we addressed a second letter to the EU Commission, warning against the increased use of so-called Deep Packet Inspection (DPI) by telecom operators. DPI is a highly intrusive technology allowing telcos to scan and classify your online content with high granularity, for instance in order to slow down certain internet traffic or bill certain content differently. Of course the technology could also be used to block certain types of traffic such as video streaming or virtual private networks (VPNs).

Commission does not seem to plan action

Unfortunately, the EU Commission’s official responses to those letters have not addressed the points raised by civil society.

In its first response, the EU Commission acknowledges “that the types and levels of sanctions differ widely between Member States” and says it was “monitoring how the existing sanctioning powers are used in practice”. However, no concrete actions or plans are proposed that could tackle the lack of enforcement in Europe. In reality, almost no penalties against infringing telcos have been pronounced so far and those that were issued have been too low to lead to meaningful change. Worse, Portugal and Ireland still have not enacted any penalties for net neutrality infringements at all despite their obligation to do so under EU law.

In its second response, while acknowledging the illegality of slowing down or discriminating traffic in principle, the EU Commission does not seem to think that zero-rating as practised by European telcos today is a problem. Instead, the Commission says, this should be decided on a case-by-case basis – which in practice means that telcos can zero-rate as they please.

Net neutrality violations still happening

As a recent study carried out by EDRi member epicenter.works shows, net neutrality violations have spread across the EU in the past years, the response of national regulators is inconsistent or lacking, and the EU Commission seems to largely ignore the problem.

The European net neutrality guidelines are in the process of being updated and the EU Commission says it plans to publicly consult civil society during that process “so that their interpretation and their arguments will be expressed and taken into account”. EDRi and its member organisations will of course participate in these consultations and hope that they will indeed be taken into account.

Response of the EU Commission to our open letter on the lack of enforcement of 30 April 2019 (PDF)
https://edri.org/wp-content/uploads/2019/06/20190517_commission_ reply_open_internet.pdf

Response of the EU Commission to our open letter against Deep Packet Inspection of 15 May 2019 (PDF)
https://edri.org/wp-content/uploads/2019/06/20190618_commission_ reply_dpi.pdfR

Net neutrality wins in Europe! (29.08.2016)
https://edri.org/net-neutrality-wins-europe

Zero rating: Why it is dangerous for our rights and freedoms (22.06.2016)
https://edri.org/zero-rating-why-dangerous-for-our-rights-freedoms

A study evaluates the net neutrality situation in the EU (13.02.2019)
https://edri.org/a-study-evaluates-the-net-neutrality-situation-in-the-eu

(Contribution by Jan Penfrat, EDRi)