By Maryant Fernández Pérez

On 14 November 2014, the Italian Presidency presented amendments to the Telecommunications package for comment by the Member State delegations. We are hereby making the document and its annexes publicly available (Note and addendum). These documents show that the Italian Presidency is now back-pedalling on meaningful net neutrality protections – having previously made some much more meaningful and positive suggestions. It presented a “principles-based approach” to the Member States “in order not to inhibit innovation and to avoid” having an outdated regulation in the future. In reality, all the text would do is add confusion for freedom of communication and online innovation.

The text proposes the removal of the definitions of “net neutrality”. “Instead of a definition of net neutrality there could be a reference to the objective of net neutrality, e.g. in an explanatory recital, which would resolve the concerns that the definition might be at variance with the specific provisions.” Yet, without meaningful and enforceable net neutrality provisions, the fundamental right to receive and impart information would be hindered – with significant costs for growth, investment and innovation.

Additionally, the text removes the definition of “specialised services” from Article 23. The deletion would in principle not be such a bad idea, as long as non-discrimination was clearly supported by the text. Sadly, the proposal would achieve the opposite:

“Traffic management measures that block, slow down, alter, degrade or discriminate against specific content, applications or services, or specific classes thereof” could be maintained by providers of Internet access services under certain circumstances, such as to “prevent the transmission of unsolicited communications” (which seems strange because an e-mail service is not an internet access service); to prevent “temporary congestion control” (whose exceptional nature should be clarified not to be the default); or to meet their “obligations under a contract with an end-user to deliver a service requiring a specific level of quality to that end-user” (which makes little sense in the “best effort” Internet).

The biggest gap in the Council text however is that Article 23 fails to prohibit discrimination on the basis of billing. Allowing “free” access to certain services and metered access to everything else is as much – and as damaging – an infringement of net neutrality and the fundamental right of freedom to impart information, as any blocking or filtering. If people have to pay extra to access your website (or if you have to pay internet companies to allow them to do so), then the essence of the open internet has been dismantled.

The proposal also makes a bizarre reference to the legislation being without prejudice to the lawfulness of “information, content, application [sic] or services” – even though nothing in the text could possibly be understood as legalising illegal content. The purpose of this text appears to permit the widespread arbitrary “voluntary” blocking practised in some EU Member States, most notably the United Kingdom. If this is the meaning, then it is in clear and obvious breach of the EU Charter of Fundamental Rights.

In sum, this last proposal of the Italian Presidency would weaken citizens’ rights and annul the strong provisions adopted by the European Parliament in April 2014. If adopted, the text would lack the much needed protections to prevent internet access providers from creating a new monopoly – access to their customers. With all of the talk of the need for a single digital market in Europe, we would have new barriers and new monopolies.

National regulators would not have clear enforceable obligations to preserve citizens’ digital rights and freedoms by default. After Obama’s recent declarations emphasising the importance and need of real net neutrality, is the Council going to suggest leaving Europe in the slow lane?

The Member States are and will be discussing this document in the Council today and tomorrow. Any text that is adopted would need to be approved by the European Parliament before becoming law.

Leaked documents (14.11.2014)
Note: https://edri.org/wp-content/uploads/2013/09/Note-NN-14.11.2014.pdf
Addendum: https://edri.org/wp-content/uploads/2013/09/Addendum-to-the-note-14.11.2014.pdf

The Members States will discuss it in the Council today and tomorrow
http://data.consilium.europa.eu/doc/document/CM-5045-2014-INIT/en/pdf (17.11.2014)
http://data.consilium.europa.eu/doc/document/ST-15597-2014-COR-1/en/pdf (19.11.2014)

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