Loopholes creeping into the Italian proposal on net neutrality
The Italian legislative proposal on net neutrality is currently being discussed by the Italian Parliament. Notwithstanding general provisions on the equal treatment of traffic for Internet access services, its amended text contains loopholes and provisions that raise concerns. The text, now containing references to EU Regulation 2120/2015 on net neutrality (and mobile roaming), generally fails to address its main issues, including prioritisation of traffic.
In fact, while including a clause on equal treatment of traffic for internet access services (art. 3(1)), it foresees at the same time the possibility to differentiate among best-effort services and ‘additional’ services (Art. 3(2)). According to the draft Italian law, those services may prioritise classes of traffic, apparently without limitation. If adopted, Internet access providers would be able to offer separate prioritised services as long as they are not included in the general Internet offer. Art. 3(2) of the Italian draft law states that:
“In accordance with implementation guidelines of Art. 3(5) of Regulation 2015/2120, ISPs may commercialise added-value services for prioritisation of traffic classes in their network in order to satisfy specific exigencies of business or home customers”.
If adopted as law, this would also mean that operators would be free to offer an internet access subscription for €X capped at YMb, on top of which customers can buy zero-rated services, that could be offered à-là-carte or as a bouquet. This would severely restrict the freedom to impart information for Italians. An Italian service provider, TIM, is already offering a zero-rated video streaming service (‘TimVision’), which gives unlimited access to contents provided by TimVision and other affiliated content providers without consuming gigabites. For the moment, it only includes audiovisual entertainment, but TIM announced that they are going to offer a 4k service on wired broadband and a possibility to open it to other commercial partners.
Much of this scenario is, thankfully, not legally permitted. The possibility of selling discriminatory services to business or home customers is not mentioned in Article 3(5) of the EU Regulation. The only criterion specified is that the increased quality is “necessary” and a further multi-part test is specified in other parts of the Regulation – namely that the specific level of quality is “required” by the service, is “objectively necessary”, such services cannot be offered as a replacement for Internet access services, they cannot be used to give priority to specialised services over comparable content, applications or services available and they cannot be provided to the detriment of Internet access services.
Moreover, Art. 3(3) of the draft law establishes that ISPs shall not set monthly rates depending on services or applications provided through Internet access services. However, this provision refers only to Internet access services, and any kind of paid prioritisation would be allowed under the provision of additional services by ISPs. This is also not in line with the EU Regulation.
The Italian draft text pays lip service to users’ freedoms but does not protect them. The law proposal affirms to guarantee end users freedom of choice by allowing them to access preferred content and applications through additional services. This is totally misleading, since the main outcome of such fast- and slow-lanes is that these provisions would overturn the openness principle of Internet, to the detriment to fair competition, innovation and freedom of communication.
Given these facts, it seems clear that the legislative process in Italy has added to, rather than removing the grey areas in the EU text, be out of kilter, if not in outright contradiction with EU Regulation 2015/2120.
Italian draft proposal on Internet services provision for the protection of competition and users’ access freedom (only in Italian, 08.08.2014)
Amendments to the Italian’s draft proposal on Internet services provision for the protection of competition and users’ access freedom
TIMVision’s offer on smartphones and tablets without consuming GBs (only in Italian)
EU Regulation No. 531/2012 on roaming on public mobile communications networks within the Union (25.11.2015)
(Contribution by Elisabetta Biasin, EDRi intern)