Leaked Regulation: Schrödinger's net neutrality on its way in Europe

By EDRi · July 11, 2013

A curious text is currently circulating in the Brussels bubble: It is the draft Regulation for a telecoms single market (pdf) mentioned by Commissioner Neelie Kroes, responsible for Europe’s Digital Agenda, in her speech in front of the European Parliament last Tuesday, 9 July (Update: Consolidated version, pdf). During this speech, she emphasised the necessity to include “the right to net neutrality” in the upcoming instrument. “Blocking or throttling services isn’t just unfair and annoying for users – it’s a death sentence for innovators too. So I will guarantee net neutrality” she stressed.

We have written many articles and have waited for years for concrete actions from Commissioner Kroes. We patiently responded to consultation after consultation, despite the facts already being known to the Commission. Since 2010, there has been an increasing number of calls from the European Parliament to guarantee net neutrality by law. In January 2013, the report (pdf) by the Commission’s own “High Level Group on Media Pluralism” recommended legislation to safeguard net neutrality in Europe. Now the Commission is taking the first important steps – or so Commissioner Kroes would have us believe.

From a quick glance at the draft text it seems, however, that Commissioner Kroes is now attempting to carry out one of Schrödinger’s most famous experiments – by putting a guarantee for net neutrality in a speech and killing it in the Regulation… is net neutrality now alive or dead? Or is it living two parallel existences until the European Parliament opens the box, pushing the principle in one direction or another? A quick search through the document gives no result for the term “net neutrality”. Article 20 of the leaked draft Regulation merely lays down provisions for “quality of service, freedom to provide and avail of open internet access and reasonable traffic management” and states:

“To the same end, providers of content, applications and services and providers of electronic communications to the public shall be free to agree with each other on the treatment of the related data volumes or on the transmission of traffic with a defined quality of service.”

This, of course, is a definition of “not neutrality”. It is the exact contrary of guaranteeing net neutrality as it would open the door to agreements between content and access providers to prioritise traffic, dealing, to quote Commissioner Schroedinger Kroes, “a death sentence to innovators”. It might even be possible that the current Dutch law, where providers are prohibited from discriminating traffic, would be in violation of this provision in this draft.

According to her speeches, a final version of this text is due to be published in September, and the full, final, package due for Easter 2014. Until then, we have to wait to find out if net neutrality is like Schrödinger’s cat, both dead and alive or like Monty Python’s parrot, simply pining for the fjords.

Alternatively you can tweet to the Commissioner @NeelieKroesEU or send her an email .

Read the full text of the leaked regulation “laying down measures to complete and to achieve a Connected Continent”:

Leaked consolidated draft: Consolidated version, pdf)