Net Neutrality threatened by the Commission’s draft regulation

By EDRi · September 11, 2013

For the past years, EU Commissioner Neelie Kroes, who started by advocating for net neutrality, has constantly given in to the pressure of large telecom companies, changing her direction from protecting net neutrality to threatening it. The current draft Regulation made public on 11 September 2013 just confirms this direction.

La Quadrature du Net and several advocacy groups have accused Kroes of killing net neutrality through the Commission’s draft proposal on the reform of the EU telecom market, under the disguise of defending it. In a leaked draft of Commissioner Neelie Kroes’ proposals for new telecoms rules, “net neutrality” was taken out from the one place where it had been previously mentioned.

“The Commission would be giving telecoms freedom to enter into business deals with big content providers such as Google or Facebook to prioritize their data flows over the Internet. Such a corporate power-grab would relegate the rest of citizens and new-entrant innovators to a slower Internet with disastrous effects for freedom and innovation online,” said Jérémie Zimmermann, spokesman for La Quadrature du Net.

The document has been re-written from previous drafts and includes now an article saying that “any operator shall have the right to provide a European Assured Service Quality (ASQ) connectivity product. End-users shall be free to agree to enter into agreements on data volumes, and speeds and general quality characteristics with providers of electronic communications.”

Kroes’s spokesman Ryan Heath has, however, stated on a blog post that the Commission cannot encourage deals between operators and content providers. “The Commission has no capacity or interest to interfere in voluntary commercial arrangements such as this,” he said.

But there was a huge opposition also in the European Commission to the assault on net neutrality. As revealed by a leak from EDRi on 10 September 2013, in the past days, the draft Regulation was the subject of extensive and heated debates in internal meetings and two services of the European Commission are leading the attacks on the current draft:

The Directorate-General for Justice and Fundamental Rights (DG Justice) harshly criticised Kroes’ proposals that would bring about the exact contrary of net neutrality. Above all, DG Justice is concerned about the inevitable restrictions on freedom of communication of European citizens: “Furthermore, we consider that such limited possibilities of accessing Internet content and services of their choice would run counter to the stated objectives of Article 38 of the EU Charter of Fundamental Rights, whereby EU policies must ensure a high level of consumer protection”

The Commissioner for Enterprise and Industry (DG Enterprise) is also concerned about the effect on European entrepreneurs.

Despite the debate within the European Commission, the college of European Commissioners decided to keep the provisions on net neutrality with a 25 to 3 vote to keep the current text. The official presentation of the text was made public on 11 September 2013.

Article 23 of the current draft text leaves the door open for a two-tiered Internet by allowing ISPs to offer speeds at different rates through “specialized services with a defined quality of service or dedicated capacity.”

“Anyone with even a passing knowledge of the functioning of how regulation is imposed on a national level in the E.U. will know that the provisions that have been proposed will be about as useful as an umbrella in a hurricane,” explains Joe McNamee from EDRi

“Mrs Kroes’ draft is flawed by design to allow commercial breaches of Net neutrality, through forms of discrimination which undermine our freedom of communication and are anti-competitive by nature. Rushing such measures, a few months before upcoming elections, is outrageous and shows the profoundly disturbing disconnection between the Commission and citizens.” explains Jérémie Zimmermann.

If the text is approved by the Parliament and the Council, it can enter into law and if adopted as is, the regulation will put a strong blow to growth and innovation and will end the present egalitarian platform of free communications.

Neelie Kroes Pushing Telcos’ Agenda to End Net Neutrality (30.08.2013)

EDRi: Kroes launches her attack on net neutrality in Europe – a “death sentence for innovators” (11.09.2013)

FAQ – Net Neutrality in draft Regulation

Leak: Damning analysis of Kroes’ attack on net neutrality (10.09.2013)

Leaked DG Justice opinion on net neutrality (10.09.2013)

Draft Regulation (11.09.2013)

Press release – Commission proposes major step forward for telecoms single market (11.09.2013)

Reding tackles Kroes: new EU telecoms law puts free speech at risk (10.09.2013)

Digital rights activist: EU’s proposed net neutrality law ‘as useful as an umbrella in a hurricane’ (11.09.2013)

Kroes’ clientelism threatened Net Neutrality at the European level (only in German, 10.09.2013)