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Commission proposal fails to deliver promise of Net Neutrality

12:12pm | 17 September 2013 | by Raegan MacDonald, Giusy Cannella

The day has finally come: last Thursday, after two years of delay, the European Commission published a proposal for the Regulation of the Telecom Single Market that promises Net Neutrality but delivers just the opposite.

Expected last Monday, the publication of the Regulation was delayed following an internal vote during which 25 out of 28 Commissioners agreed the proposal still needed improvements before being sent to the European Parliament. This happened just a few hours after a leaked internal document published by European Digital Rights (EDRi) showed that many services of the European Commission had serious concerns on the Regulation’s net neutrality provisions. In particular, Directorate General (DG) Justice was said to be worried about the negative impact that these provisions would have both on fundamental rights – notably freedom of expression – and on the competitiveness of the European digital market.

But despite these criticisms, Commissioner Kroes pushed the Regulation through, managing to rush the publication of a proposal that, under the official aim to complete the telecoms single market and deliver a connected continent, could mark the end of net neutrality in Europe. Ironically, in a speech released before the publication of the Regulation, Kroes said, “The legislation proposed today is great news for the future of mobile and internet in Europe. The European Commission says no to roaming premiums, yes to net neutrality, yes to investment, yes to new jobs.”

But reading the text of the proposal, it sounds more like a clear “no to net neutrality!” Indeed, while according to the Commission’s press release the proposal will “encourage more competition between more companies” and guarantee “net neutrality, innovation and consumer rights,” it unfortunately fails to deliver on a number of fronts.

What’s in the proposed anti-net neutrality law?

Article 23 of the proposed Regulation contains very conflicting provisions. The article starts off well, allowing end users “to access and distribute information and content, run applications and use services of their choice” (23(1)).

But vague wording and loopholes abound. For instance, the provision banning discriminatory measures, including “blocking, slowing down, degrading or discriminating against specific content, applications or services” (23(5)), also contains a broad range of exceptions, weakening this very important prohibition.

One of the more problematic of which calls traffic management “reasonable” when it “encompasses prevention or impediment of serious crimes, including voluntary actions of providers to prevent access to and distribution of child pornography” (Recital 47). This would give the green light to restrictions on freedom of communication that could be applied by ISPs without due process of law, which is in direct violation of Article 52 of the Charter of Fundamental Rights.

Furthermore, these provisions are rendered completely meaningless by allowing internet access providers to enter into commercial agreements with big content providers in order to prioritise internet traffic (23(2)) -- thus completely undermining the essence of net neutrality (more on why this is harmful can be found here).

The proposed Regulation also encourages special agreements on data volumes (23(2)). Although this practice is not discriminatory per se, this is increasingly used as a way to provide preferential access to certain services, thereby undermining competition and innovation. For instance, Deutsche Telekom imposes strict data caps on internet access contracts, but the company’s own streaming service, “T-Entertain,” does not count against this data allowance. This effectively limits the market for legal online music.

Enshrining incentives for service and content providers to offer such preferential agreements would not only be harmful to the exercise of rights online (a concern also raised by DG Justice in the aforementioned leaked document), but it would also be, to use Kroes’ own words, "a death sentence for innovators.”

The proposed Regulation would make these harmful practices the rule rather than the exception.

A Commissioner who does not keep her promises.

When she took office as Vice President of the Commission responsible for the Digital Agenda, Commissioner Kroes promised she would guarantee an open and neutral internet in Europe. In the course of her mandate, she continued to make that promise and in a speech to the European Parliament a few months ago, she urged Parliament members to do the same, saying, “I want you to be able to say that you saved their right to access the open internet, by guaranteeing net neutrality.”

Two years later, Commissioner Kroes has betrayed her promises by placing the interests of large telecom companies ahead of EU citizens, delivering a proposal that will not only stifle innovation in the EU online market, but could undermine the Charter of Fundamental rights, namely Article 11, the freedom to receive and impart information.

So what is net neutrality?

Based on the supposed “net neutrality” provisions in the Regulation, it seems that there is some confusion around what this term actually means. Network Neutrality is the guiding principle that preserves the free and open Internet. According to this principle, all data traffic should be treated equally no matter its sender, recipient, type, or content. It also provides that all forms of discriminatory traffic management, such as blocking or throttling should be clearly prohibited.

To avoid misleading interpretations of the net neutrality principle and laws that would undermine its essence, Access will soon publish a position paper on net neutrality that includes a clear set of principles that we urge to include in the proposed Regulation to safeguard the open and neutral internet in Europe. As the debate on net neutrality is often highly technical and subject to many misunderstandings, this paper provides a brief clarification on some of these main topics, particularly the definition of network discrimination, what constitutes “reasonable” traffic management and its impacts on the economy and the fundamental rights to privacy, data protection, and freedom of expression.

Considering the many loopholes contained in the proposed Regulation, we believe that this clarification will serve as a guidance for EU policy makers to guarantee EU’s citizens unfettered access to the internet.

What’s Next?

The legislation will soon be in the hands of the European Parliament. In the past few years, Parliamentarians have expressed strong support for binding provisions on network neutrality (here and here); they now have a golden opportunity to amend the text and see (real) net neutrality come to fruition in Europe.

However, as the elections in the Parliament are quickly approaching, there is a strong possibility that this dossier will be delayed until the new Parliament takes office in July 2014. At this point, it is therefore unclear as to how the proposed Regulation will proceed, and what will be the priorities of the new Parliament.

Whether it is with this group of Parliamentarians or the next, in order to truly prevent ISPs from engaging in network discrimination, the Regulation will need to be amended, including some deletions and tightening of key provisions. If MEPs manage to close these loopholes, we could very well have strong net neutrality protections (like the Dutch and Slovenian laws) in the EU.

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