By Joe McNamee

After an overwhelming vote in favour of net neutrality by the European Parliament in April 2014, this position in favour of free speech, competition and innovation is now in danger.

The negotiations between the European Parliament (the only directly-elected institution of the European Union) and the Council of the European Union (“the Council,” representing the EU Member States) are part of a legislative proposal on net neutrality and mobile roaming. In principle, both institutions have equal power (“codecision”), although the Parliament can obviously claim a degree of democratic legitimacy. Before the last European Parliament election, a large majority in the Parliament adopted a strong text in favour of net neutrality (its so called “first reading”).

Negotiations (a so-called “trialogue” procedure) involving the Council, the European Commission and the Parliament started in March 2015. In these negotiations, the Council has shown no respect whatsoever for the European Parliament’s position. The only movement in the negotiations on any of the points in the proposal has involved concession after concession by the European Parliament, which has received absolutely nothing in return. The result is that we are now potentially days away from an end to net neutrality in the European Union.

The Council has refused to negotiate on the basis of the Parliament’s agreed position. As a result, the Parliament conceded and produced a compromise text based on the Council’s proposal. The following is a summary of the developments so far (the numbering below is based on the Council’s most recent text), based on a confidential proposal sent by the Council to the Parliament on 22 May, 2015.

Article 1 (Scope): The Parliament’s first reading adopted an expansive article on scope, including measures to “facilitate the practical exercise of the right of citizens and businesses to access competitive, secure and reliable electronic communications services”.

In contrast, the proposal for Article 1 in the Council’s most recent proposal only (undefined) “open internet access”.

Summary: Complete rejection of Parliament’s position

Article 2 (Definitions): The Parliament’s first reading adopted a definition of “net neutrality” and included a reference to the principle of net neutrality in the definition of “internet access service”. The Council’s text avoids all mention of net neutrality.

Summary: Complete rejection of Parliament’s position

Article 3 (Safeguarding of open internet access)

The Council includes text on non-discrimination, but only in relation to the implementation of exceptions (for court orders, network security, etc). The Parliament’s first reading text was more comprehensive, prohibiting internet access service providers from discriminating “between functionally equivalent services and applications”.

Summary: Rejection of core element of Parliament’s position

Article 3, Paragraph 1
: The Council includes text “clarifying” that illegal information, content, applications and services are illegal. Without this superfluous reference, EU and national law would clearly be applicable in any case. As this text is entirely unnecessary, the Parliament had deleted it in first reading.

Summary: Complete rejection of Parliament’s position

Article 3, Paragraph 2: The Council’s text gives internet access services providers open-ended rights to offer discriminatory services to end-users. The only safeguard in the text is that end-user’s choice and the right to access and distribute information should not be limited. The Parliament’s first reading said that such access must “not discriminate between functionally equivalent services and applications”. As late as January of this year, the Council contemplated giving Member States the right to ban price discrimination, before deciding to opt to allow all forms of anti-competitive, anti-free speech, anti-innovation discrimination.

Summary: The Parliament’s position that would prohibit discriminatory services is rejected.

Article 3, Paragraph 3 a: The Council proposes ambiguous text saying that, in addition to measures taken to implement court orders or orders by competent authorities, it should also be possible for internet providers to take “measures giving effect” to Union or national legislation. This suggests some form of voluntary and arbitrary censorship, which would be in contradiction to Article 52 of the Charter of Fundamental Rights. Confirmation of the legally dubious nature of this approach can be found in a Council document published in January 2015, which stated that this “may raise legal concerns vis-à-vis the Charter of Fundamental Rights and the e-Privacy Directive”. To our knowledge, no legal analysis was ever produced to address these concerns.

The Parliament’s first reading simply said, in line with the Charter, that restrictions on internet traffic by internet service providers should be implemented if complying with a court order.

Summary: Complete rejection of Parliament’s position and violation of Article 52 of the Charter.

Article 3, Paragraph 3 b: Preserving the integrity and security of the network. This is unchanged in texts from all institutions.

Summary: No change

Article 3. Paragraph 3 c: The Council text provides an exception for traffic management imposed in relation to congestion that is either exceptional or temporary (implicitly acknowledging that regular, but temporary, congestion is acceptable). The Parliament’s first reading said that this exception should only cover congestion which was both temporary and exceptional.

Summary: Complete rejection of Parliament’s position

Article 3. Paragraph 3 d: Neither e-mail filters and parental controls software are relevant for this legislation, as they are not directly part of the internet access service. In it is initial position, the Council said that an (unnecessary) exception could be offered if these services were explicitly requested by the end user. This was then weakened to cover situations where this was simply consented to by the end-user (in the small print of the contract the user signs up to for example). As this entire provision is redundant, the Parliament deleted it in its first reading.

Summary: Complete rejection of Parliament’s position

Article 3. Paragraph 4: The Council’s text states that the Article must only entail measures that are necessary and proportionate to achieve the objectives of Article 3 and that they must be in line with data protection legislation. However, the new text on “other measures” and parental controls have no stated or obvious objectives (the “objective” is to offer these services), leading to this paragraph now being logically incoherent, in contradiction to the Parliament’s first reading text.

Summary: Complete rejection of Parliament’s position

Article 3. Paragraph 5: The Council’s text foresees the provision of “optimised services”, with no obligation that be offered on a non-discriminatory basis. The only safeguards are that they are not substitutable (without providing a definition) and that they do not interfere with the quality of internet access for other end-users (i.e. they can interfere with the quality of internet access for the end user availing of these “optimised services”) – in obvious contradiction to the requirement that they not be substitutable for internet access services. In contrast, the Parliament’s first reading had a clear non-discrimination principle, based on its definition of “specialised services”.

Summary: Complete rejection of Parliament’s position

Conclusion

  • From an institutional and democratic perspective, it is completely unacceptable to have the European Parliament’s position overturned in this way.
  • From the perspective of freedom of communication and respect for the Charter, it is unacceptable to replace the open internet with a network that permits discrimination and arbitrary interferences with data traffic.
  • From an economic perspective, after the US Federal Trade Commission adopted measures to permit effective protection for net neutrality, the competitive damage for European innovators and start-ups will be enormous.

    The Parliament must assert itself more strongly.