No European net neutrality legislation after all

Net or not neutrality?

Just when activists and avant-garde regulators hoped for a European happy end on net neutrality, Digital Agenda Commissioner defended the right of content providers to negotiate with operators “flexible quality of service including lower levels of priority for traffic which is not time-sensitive.” The July 9 announcement puts at risk the very definition of “not neutrality,” as Europe Digital Rights (EDRI) warned. In July, the civil rights organisation EDRI had leaked Kroes' draft regulation [PDF] “laying down measures to complete the European single market for electronic communications and to achieve a Connected Continent“.

The draft proposal includes some provisions meant to help consumers, including broad transparency requirements. Under the proposal, users are granted rights to fully understand the nature of the service and its limitations with regards to bandwidth or data travel speed (see article 20 of the draft text).

Throttling or blocking traffic – something Kroes said in a speech was not an annoyance, but a “death sentence for innovators“ – should be limited to the following situations:

• implementation of a court order or legislative provision (which might mean a Hadopi-like rule),

• securing the network,

• stopping spam (where users have agreed to it) and

• minimising the effects of exceptional congestion (“provided that equivalent types of traffic are treated equally.”)

Obligations for network operators to allow switching include consumer friendly provisions like a 12 month period during which email is sent on to the lost customer's new email address while the sender receives a notification about the move – all for free.

Yet, net neutrality as a rule is not mentioned once throughout the 55 page long proposal.

Holy cow single market

The bulk of the proposal is concerned with the single market, which a EU-wide notification for all service providers and better use of spectrum shall help to realise. Europe had already fallen behind America, Africa and parts of Asia with regard to rolling out mobile broadband services in the 800 MegaHertz (MHz) band, complains the draft proposal. More investment, more bandwidth, more market - looks like the most important concern of the draft text and easier cross-border operation in the single market is what is supported best.

Following the “market“ logic, Kroes in her speech warns against more regulation. “If you aim to protect an open network, overregulation is exactly the wrong way to go,” Kroes said. “The fact is, many innovative new (sic) services depend on fast connections over IP networks. If you want to invest in (say) new video conferencing equipment, an IP TV, or a new cloud computing contract, you will also want to know your connection will support it. If EU laws banned such quality guarantees, we would risk effectively outlawing many of those new services too.”

Kroes got all wrong, say her critics, including technology writer Glyn Moody, who countered Kroes’ argument about how negotiated faster delivery for some would make the internet better for everybody. It was not at all obvious how such premium products would magically boost the 'best-efforts’ internet, Moody wrote. If companies would be allowed to pay for their IP packets to be given priority over ‘best-efforts’ services, it could instead result in the latter being pushed into the Internet's slow lane.” The possibility for the “deep-pockets” to buy their way to end consumers has been the very concern of those arguing in favour of net neutrality for years.

“The basic problem is that companies that run networks also provide services and they want to discriminate. What is needed for a vibrant, competitive market is functional or structural separation, as is very clearly illustrated by the UK,” Joe McNamee, executive director of European Digital Rights (EDRI) wrote answering questions by the Internet Policy Review.

Death blow to net neutrality?

In an earlier analysis. EDRI criticised Kroes for putting a net neutrality guarantee in her speech, while killing it in the regulation: “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, a 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.”

EDRI's McNamee in his email points out: “If Kroes insists on legislating in favour of discrimination then clearly national laws that ban discrimination would be in trouble.” The Netherlands have disallowed providers from discriminating traffic and would be obliged to change their net neutrality legislation. Also, Slovenia’s recent net neutrality legislation might fall.

In Germany, where there had been some movement towards legislating net neutrality – at least if it still could make it after the Federal election (September 22, 2013) – liberal party member Jimmy Schulz called Kroes' move “irritating“ as it was contrary to statements from the Digital Agenda Commissioner. “According to that leaked draft, it would not be possible to ban network providers from offering special deals with selected service providers. That would be contrary to the net neutrality principle,” Schulz wrote.

Such rules would harm innovation and create barriers for start-ups and newcomers in the market, Schulz argued. Yet, he was confident that there would be changes in the draft regulation, given that governments would intervene. Kroes has announced to present the finalised draft from the Commission in September 2013. Those fighting for the cause for years now, seem less sure about this date.