ENDitorial: Net neutrality – wait and see the end of the open Internet

By EDRi · November 17, 2010

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Deutsch: [ENDitorial: Netzneutralität – Warten auf das Ende des offenen Internets |]

At the joint European Parliament and European Commission net neutrality
summit in Brussels on 11 November there was a clear political message – that
interference with Internet traffic is permissible as long as companies tell
their consumers that it is happening.

The Commission will “wait and see” if such interferences cause problems for
the market and will consider taking action if this is the case. In a whole
day of discussions, the fundamental rights aspects of the interference by
private companies with citizens’ communications were only questioned by
Jeremie Zimmermann from La Quadrature du Net and Jan Albrecht MEP
(Greens/EFA, Germany).

Anyone who has been active in telecoms regulation in Brussels for the past
decade would have been forgiven for suffering from a severe bout of “déjà
vu”. The large operators were out in force explaining that the market is
very competitive and they could not afford any regulatory interventions. No
regulatory intervention is needed, they explained, because the market will
take care of all problems. Catherine Trautmann MEP (S+D, France) demanded a
Commission Recommendation which, while not binding, would at least create a
methodological framework adaptable for binding legislation after it fails.
Her arguments were insightful, forceful and apparently ignored by the

The European Commission has heard the large operators’ arguments before and
was convinced to delay urgent regulatory interventions. In 1999/2000, there
was an urgent need to open the “last mile” of telecoms infrastructure to
competition, in order to boost Internet access in Europe. The Commission
decided against the legislation and opted to “wait and see”. When nothing
happened, they proposed a Recommendation on opening the market. When this
also failed, they proposed a Regulation which was implemented well in some
countries and badly in others, partly due to the rushed nature of the
legislative intervention. “Wait and see” had failed European citizens.

The European Commission heard those arguments again when it started asking
questions about the huge cost of mobile phone roaming. After initially
waiting to see the scale of the issue, it started investigating the problem
at the end of 2004 and a Regulation entered into force in June 2007. It
took a further three years to deal with data roaming. The cost of this “wait
and see” delay was the loss of millions of Euro for European businesses and
European citizens. “Wait and see” had failed European citizens again.

And now, when developing policy to address interferences with private
communications, when developing a policy which deals with a core element of
modern democracy, the Commission has decided to “wait and see”. This time,
however, the Commission will not be able to intervene once all other options
have failed.

Once Internet intermediaries start interfering more overtly with
communications, they will find it more and more difficult to argue that they
should be entitled to do this for their own benefit, but not for other
vested interests. Already, access providers are being asked to block peer to
peer communications (see the Scarlet/Sabam case) and to block certain
websites for the vested interests of the copyright industry, to block
gambling websites for the benefit of vested interests of national gambling
monopolies (in France, Italy and elsewhere) and to block websites accused of
containing child abuse material, to hide the inadequacy of national
administrations that are unwilling to make the effort to have the crime
scenes taken offline and to prosecute the criminals behind them.

When the Commission finally decided to act in relation to unbundling and
roaming, it just had to face the lobbying power of the telecoms companies.
With the non-neutral Internet, however, things will be very different. It
will face the opposition not just of the large telecom providers, but also
every company and organisation with a vested interest in restricting access
to communication. It will also face the opposition of organisations arguing
for policing of the net by access providers. The OECD is currently
discussing how Internet intermediaries can police the Internet to achieve
public policy objectives, the Council of Europe has asked for “reflection”
on the liability of intermediaries in relation to online intellectual
property infringements, the ACTA Agreement (which the EU is currently
finalising) calls for the cooperation of Internet intermediaries in
combating online intellectual property infringements, the UN has called for
their cooperation to protect children online, the OSCE is discussing how
they can cooperate to address hate speech. The list is endless.

Once the Commission has waited and seen that regulatory intervention is
needed, it will be too late. Just wait and see.

The “Sabam vs Scarlet”-case will be continued before the European Court of
Justice (7.02.2010)

OSCE – Role of the Internet industry in addressing hate on
the Internet (10.05.2010)

OECD – The Economic and Social Role of Internet Intermediaries (16.06.2010)

UN (Tunis Agenda) (18.11.2005)

ACTA (15.11.2010)

(Contribution by Joe McNamee – EDRi)