EU Council proposals on protecting the open internet – Episode 1, the phantom neutrality

By EDRi · March 5, 2015

After the European Parliament voted to protect net neutrality in April of last year, the EU Council of Ministers has just adopted its text on net neutrality (pdf)*. It claims to aim to defend the open internet, but would, in fact, permit every imaginable breach of net neutrality.

The misleading nature of the adopted text is very clear in the explanatory “recital”:

End-users, including providers of content, applications and services, should therefore remain free to conclude agreements with providers of electronic communications to the public, which require specific levels of quality of service. [emphasis added]

Net neutrality is the principle that content, applications and services are treated equally online. This allows everyone to connect to everyone globally, to the benefit of freedom of communication and innovation. It is the essence of the internet’s success. Giving preferential treatment to certain online services through special “quality of service” agreements or other preferential treatment would destroy the essence of the internet.

In the Council text above, “require” can only refer to the word “agreements”. So, if respecting an agreement requires “specific levels of quality of service” (i.e. discriminatory treatment of content, applications or services), then this discrimination between online services is permitted.

To put it another way, if the agreed service agreement includes a “fast lane” for certain content/services (leaving everyone else in the slow lane) – then this breach of net neutrality would be completely permissible under the legislation.

This analysis is confirmed by the slightly more garbled Article (3.3) in the proposed legislation:

Providers of electronic communications to the public, including providers of internet access services, shall be free to enter into agreements with end-users, including providers of content, applications and services to deliver a service other than internet access services, which requires a specific level of quality.[emphasis added]

We have no idea why the article says that the access service must require a specific quality of service and the explanatory recital says something different, namely that it is the agreement must require a specific quality of service. Ultimately, however, it means the same thing.

We would therefore be left with a European law that would not in any way protect net neutrality. The “compromise” is so ridiculous that even the Council itself was unable to spin the line that it was protecting net neutrality, claiming instead that this compromise had been the aim: “It also sets out to ensure that companies that provide internet access treat traffic in a non-discriminatory manner”.

The Council hopes that the European Parliament will be sufficiently distracted by the parallel discussions on roaming (where “compromises” are already prepared by the Council, because the “compromises” are what the Council actually wants), that it might let this text go through, unchallenged.

Next steps:

The proposals will now be negotiated (together with roaming) by the European Council and Parliament. The Council deliberately adopted an extremely weak text on roaming, in order be able to “compromise” with the Parliament in return the Parliament not demanding net neutrality.

If an agreement can be reached by early in the summer, this will be sent to the Parliament for approval. If the agreement is adopted, it will then be signed off by the Council before becoming directly applicable in all EU Member States.

*We have not yet been able to definitively verify if there were any last minute changes.