Europe pushes rewind button on net neutrality

23 Sep 2013 by Monika Ermert on EU legislation

The fight around net neutrality is far from over. In fact EU Commissioner Neelie Kroes’ recent presentation of her version of “net neutrality” in a draft regulation on a “connected continent“ resulted in an outcry on behalf of digital rights organisations. If passed unchanged, the new legal instrument would explicitly allow for deals between content providers and network operators about preferential treatment. Will countries like the Netherlands or Slovenia have to turn back the wheels on their strict net neutrality laws? The Council started talks on the regulation on September 20, according to the Council spokesperson for telecommunication, Paivikki Ala-Honkola.

EU regulation

Regulations are powerful instruments in the EU. They take immediate effect in all member states – as opposed to directives, which first have to be transposed into national laws allowing for considerable differences across the EU. (See Art. 288 TFEU)

There are a lot of provisions on transparency for bandwidth and speed in Kroes' new draft regulation. Users would, with the help of regulators, be better off when it comes to monitoring the quality of their access network. Still, digital rights organisations and experts in net neutrality were not appeased.

Freedom for everybody

Although article 23 of the draft legislation focuses on the “freedom to provide and avail of open internet access, and reasonable traffic management,” it includes a clause that clears the way for preferential treatment of packets: for special offers to end users “providers of content, applications and services and providers of electronic communications to the public shall be free to enter into agreements with each other to transmit the related data volumes or traffic as specialised services with a defined quality of service or dedicated capacity,” the text reads.

While there is a “no-discrimination, no-blocking”-clause, too, and a warning that “specialised services shall not impair in a recurring or continuous manner the general quality of internet access services,” the door for the two-sided market is pushed open. Telecom providers have long asked to get their share from large internet platform providers, in addition to charging end-users. An open question so far is, if the programme bouquet chosen by the network operator for his customers will be made part of the transparent offer – e.g., “we have a faster Google, Facebook” or the like. The transparency clauses in the draft regulation cover bandwidth and the like, but not a potential pre-selection of prime services for end-users.

Another interesting question there will be: with preferential treatment possible, how could a network operator be prevented from positively differentiating his own content the same way as third party specialised services?

The Directorate-General Connect invokes “no blocking“

“You can run a parallel specialised service alongside the public internet, IPTV or whatever might get invented next,” Ryan Heath, spokesperson for Neelie Kroes writes in an answer to the Internet Policy Review. “But you can't slow down someone else's services, application or video site, because you do not like them.” Heath refers to the non-blocking-part of the regulation. Yet while you cannot block, you can allow for a first class fast lane.

Providers like Google would keep doing what they are already doing in an effort to upgrade user experience for their services by building backhaul networks. “That isn't killing small people, it's just encouraging extra investment.” Everybody had and was supposed to have the same opportunity to invest. On the other hand, Heath writes, there was little point for Google delivering at high-speed 100 Mbps when the last mile was much slower. It was therefore likely that Google would start “offering their own internet package” or “help companies upgrade their last mile to make sure their other investment is not wasted.”

Therefore the key to enforceable net neutrality was ensuring “everyone gets equal access within their internet subscription,” he writes. While users’ “equal access“ to everything on the net is invoked as a core issue by Heath, is there a more hidden concern that EU content providers might lose to Google buying their way to customers anyway?

Reaction by rights groups and in Brussel corridors

Digital rights groups cried foul at the eve of the publication already. Neelie Kroes was “consciously betraying EU citizens by giving in to the powerful telecom lobbies,” declared Jérémie Zimmermann, co-founder and spokesperson of the citizen organisation La Quadrature du Net. Zimmerman also warned against rushing such measures before the upcoming elections.

The latter sentiment can also be felt in the corridors of the European Parliament. “Such a massive, and controversial file just a few months before the election is not welcome to many of the party groups, even if for different reasons,” said a spokesman of Amelia Andersdotter, Swedish Pirate and member of the Green Party Group in the Parliament and member of the lead Committee for the document, the Committee on Industry, Research and Energy (ITRE).

The regulation includes also single authorisations, harmonisation of spectrum policy and user rights including the change of your telecom provider. Net neutrality standards in the draft text were “low, even dangerous,” said Andersdotter's spokesperson in a first reaction. The lead rapporteur for the document has yet to be named.

More concerns from EU legislators

Not only in the European Parliament, even inside the Commission there seems to be opposition, according to a highly critical note from the Directorate-General Justice, published by European Digital Rights and analysed by IPtegrity's Monica Horton. The main concern of Justice Commissioner Viviane Reding: the regulation as it stands could harm competition by favoring the deep-pockets over the start-ups, it could therefore limit user choice and lastly also violate fundamental rights of freedom of expression, freedom of information and freedom to conduct business.

Also from the point of view of at least some member states, there should be huge concerns. The Netherlands and Slovenia for example, have adopted net neutrality legislation, banning paid preferential treatment of traffic. Council representatives were introduced to the regulation during a lunch of the Committee of permanent representatives (Coreper) with Commissioner Kroes yesterday and received a presentation on the issue this afternoon, according to Commission and Council spokespersons.

The “connected continent” topic is on the menu for the EU Council meeting in October (24-25), but the article-by-article examination would only start after that event, in November, at the earliest. While Heath writes that adoption of the instrument might be possible in “April 2014 at earliest” - just before the elections for the new EU Parliament, this looks like a very ambitions time plan.

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