By Joe McNamee

After all of the excitement and jubilation as a result of the US FCC’s ruling on net neutrality, what is going on in Europe? Quite a lot, as it happens.

History

In September 2013, the European Commission produced a badly drafted, incoherent “Telecoms Single Market Regulation”, which included proposals that claimed to support net neutrality, but which would actually destroy it.

In April 2014, the European Parliament adopted its first reading of that proposal, closing the loopholes in the badly written text. This improved text was supported by a big majority in the Parliament.

Now, the third institution in the EU framework, the Council of the European Union (made up of Member State Ministers) is about to adopt its position. After almost exactly a year of discussions, the Council has deleted most of the elements of the badly-written, badly-planned Regulation, leaving just the parts on net neutrality and roaming.

Next steps

The Council’s draft (pdf)*, discussed on 27 February at Working Group level, will be finalised next Wednesday by Member State Representatives. As a result of extensive pressure from the large Member States (especially Spain), loopholes that would undermine net neutrality have been re-inserted.

The result would be legislation that essentially means nothing, generating regulatory burdens and confusion, while failing to protect freedom of communication, competition and innovation. Shortly before the launch of the EU’s flagship “digital single market” initiative, the EU Member States are legislating to allow telecoms companies to create new barriers online by creating fast lanes and free passes for business partners and their own services.

For the big Member States, like Spain and Germany, the lobbying of their big national ex-monopolies is difficult to resist. Their demands become more important than the citizens and start-ups in their countries. Sadly, they have enough power to force compromises onto the rest of the EU that undermine everybody’s rights, innovation and the broader economy.

Privatised law enforcement

In parallel with the destruction of net neutrality, the draft also contains incoherent and contradictory text on the right of internet companies to filter and block content outside the rule of law. The UK attempted and failed to introduce such text. However, Sweden was persuaded to propose the UK’s proposal (and probably got something nice in return, we will never know) and this then found its way into the compromise text prepared by the Council Presidency.

The draft currently contains an article that says, even though there was no doubt about this, that internet providers can block content if required to do so by law. There are then two explanatory “recitals” which clarify this text. The first explains, incomprehensibly, that such actions could be taken for reasons (recital 9):

…such as national measures of general application, courts orders, decisions of public authorities vested with relevant powers, or other measures ensuring compliance with such legislation (for example, obligations to comply with court orders or orders by public authorities requiring to block unlawful content)”.

The following recital (10) explains the same thing again, but randomly adds another meaningless criterion, namely “ensuring compliance with such legislation”. What is a “national measure of general application”, what does “ensure compliance with legislation” mean, if it doesn’t mean comply with a court order?

It appears irrelevant that the primary law of the European Union is quite clear that such restrictions are illegal. According to Article 52 of the Charter of Fundamental Rights (pdf), restrictions must be “provided for by law” and not left to the vagaries commercial interests and priorities.

What next?

EDRi and its allies are still working hard behind the scenes to improve the Council text. Once the text is adopted by the Council, negotiations will start between representatives of the European Council and Members of the European Parliament. Leading the Parliament delegation will be Pilar Del Castillo (EPP, Spain), who tabled in amendments in the first reading in the Parliament, that were significantly less supportive of net neutrality than those of either Industry Committee as a whole or even her own political group.

Join us to defend the open, neutral internet.

*The link is to a version that is a few days older than the one being discussed.