EuroDIG discusses variants for EU net neutrality rule

Details about a future European net neutrality rule are still lacking, after EU Digital Agenda Commissioner Neelie Kroes announced she would progress to the next step. Should it be a law, like in the Netherlands and Slovenia, or are co-regulatory guidelines like in Norway doing the job.

Faced with additional national laws, like the one which is expected to be discussed in the German parliamentary committees next week, Luigi Gambardella from the Telecom operator association ETNO warned against fragmentation of the EU market at a dedicated session on net neutrality, during the European Dialogue on Internet Governance (EuroDIG), June 21 in Lisabon.

For the Dutch government, the “economic incentive for operators to cut off possible competition via the internet“ had been a clear motivation to make a clarification of the EU principles in national law, Marieke Pondman, from the Dutch Ministry of Economic Affairs, said. The operator should not be the one to decide what services consumers are to use. “We've decided, the best way to protect the consumer's interest, to protect innovation, was by law,“ she said. “We hope this will find European equivalence soon.” (full English translation of the text at Bits of Freedom)

Pondman said, there was agreement in Europe about the basic principles that should rule the marketplace for internet access. Competition, switching, consumer choice, transparency, were the principles all would strive for. What was lacking was a common line on how to protect these in the face of an economic crisis and calls to protect investments in one way or another.

The proliferation of national net neutrality laws

Several national initiatives are under way to put national legislation in place. The Slovenian Parliament in December passed a bill that for example would prevent internet service providers (ISPs) from “charging subscribers with different connectivity prices varying on the basis of services provided over the internet“, as Radio Brussels Libera reported. According to Frédéric Donck, head of the Brussels office of the Internet Society, the Parliament in Luxembourg today passed a motion to adopt a law in the coming month.

Jimmy Schulz, member of the German Parliament for the Liberal Democrats, said, he expected the proposal for the German version to be discussed in the committees of the parliament next week. The German initiative would, according to Schulz, prevent preferential treatment of paying partners of an operator. During the EuroDIG talks, the Wall Street Journal reported that Google, Microsoft and Facebook did in fact pay for faster delivery, specifying that this was in line with current US rules.

There are also member states that, while debating the issue, are inclined to wait for the proposal from the EU Commission. But so far, according to a Commission official, the Commission had “not yet taken any decision on the instrument“. Content and format of the EU net neutrality rule were still under discussion.

The co-regulatory approach

Certainly from the point of view of the network operators, a solution like Norway's looks much more attractive. Norway, as Ørnulf Storm, from the Norwegian Post and Telecom Regulator (NPT) pointed out, had chosen the co-regulatory approach in 2009 already. While a non-binding agreement to uphold net neutrality principles, the Norwegian co-regulation stipulates that potential violations can be discussed and resolved among the regulating agencies and the operators at annual sessions. “We have always said, that if it does not work well, we could take another step and proceed to a legislative solution,” Strom said to Internet Policy Review. So far, apparently, the system has worked well.

ETNO representative Gambardella and Christoph Steck, head of the Public Policy Directorate at Telefónica S.A. in Madrid, cautioned against additional regulation in what Gambardella said was already a highly regulated field. Freedom to innovate should also be granted to network operators, Gambardella added. Steck argued that parallel offerings for network access, cable and DSL, plus several mobile broadband services, would allow for enough choice and competition.

Yet, Jean-Jacques Sahel, director of Government and Regulatory Affairs at Microsoft, complained that that was an old and unfulfilled promise. There were still, according to his figures, 275 million customers in the EU who could not use VoIP over their mobile phone. “There is a problem and the current framework does not address it,” he said.

Dirty details

So far, none of the existing regulations have gone so far as to establish concrete measures of minimum standards for best-effort internet service or, clear definitions of what specialised or managed services would be. These very details could make the best-effort internet to a last-effort internet, a dirty bumpy road, as certain EuroDIG participants warned.

“Should an operator who reserved the main part of his shiny new bandwidth to managed services not be obliged to communicate to customers that only 13 Mbit were left from the 50 or more Mbit offering?,” Lutz Donnerhacke from the German ISP IKS Service asked. Donnerhacke, participating in EuroDIG as a representative of Euralo - the EU internet user representation body for ICANN, also warned about dual use possibilities of network management tools. Instead of mitigating security risks or attacks, they could be used for other purposes by firm managers or marketing departments.

Pondman acknowledged, with the advent of TV-like and bandwidth-hungry services such as Netflix, the question for minimum free-internet bandwidth would become much more relevant. The Dutch law had for that reason left the question open: how much has to be granted for the best-effort internet? Yet, the question might come up there too, sooner than later.

The EuroDIG also discussed the PRISM revelations, potential alternatives to classical jurisdictional approaches for cyberspace, privacy and copyright issues.