Leaked draft legislation reveals EU telecom regulations lack promised network neutrality provisions

More disappointing news from the Commissioner for the Digital Agenda Neelie Kroes is spreading around Brussels. There are no clear network neutrality provisions contained in forthcoming Regulation for the Telecom Single Market, according to a leaked draft recently published by European Digital Rights (EDRi).

When announcing the new Regulation, Commissioner Kroes said it would include consistent rules to safeguard the open internet, preventing network operators from applying discriminatory restrictions over the internet, such as blocking websites and applications or slowing down internet speeds.

However, in its 55 pages, the leaked legislative text fails to mentions the words “network neutrality” once. After recognizing that many end-users are affected by traffic management practices which block or slow down specific applications — as reported last year by the Body of European Regulators for Electronic Communication — Article 20 of the draft weakly states, “End-users shall be free to access and distribute information and content, run applications and use services of their choice.”

As if this definition of net neutrality was not vague enough, the Article continues, “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 provision explicitly allows agreements between content and access providers to prioritise traffic. To wit, big content providers such as Google or Facebook would be able to enter into commercial deals with access providers to ensure that their traffic is always delivered first and faster. Furthermore, the same article would allow access providers to impose “data-caps” on internet access contracts while granting priority to their own services (like Deutsche Telekom to its own “T-Entertain”).

In this way, access providers grant preferential treatment to selected services, while competitors’ services are discriminated against, effectively imposing anti-competitive limitations on online markets and leading to a “two-tier internet.” This is exactly the opposite of net neutrality, which is the principle that all data packets must be treated equally, regardless of their source, destination, or application.

The leaked text has left digital and civil rights groups in Europe astonished, particularly coming so soon after Commissioner Kroes’ umpteenth promise to ensure net neutrality in Europe. In a speech given before the European Parliament on July 9, Kroes said that “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.” But she didn’t stop there, promising to “end anti-competitive blocking and throttling, for every citizen, on every network, on every device.”

The contradictory approach adopted by the Commission when it comes to net neutrality is becoming more evident than ever. By allowing “premium services” — that is higher quality of access — the Commission’s proposal would create unfair barriers for startups, potentially resulting in situations where only deep-pocketed companies would be able to afford to enter into such preferential agreements. This would leave those who cannot pay the required fee unable able to compete as their traffic would be delivered much slower, essentially throttled in comparison.

Furthermore, Commissioner Kroes recently announced that the Commission will deliver €100 million to tech startups and SMEs to ensure “innovation and a more digital economy in Europe” and “a better ecosystem for start-ups.”

This raises another question: how can the Commission envisage to safeguard network neutrality as a precondition for innovation, competition, and the growth of the European economy, if network operators are able to impose restrictions to the open and neutral internet? This has already been the object of several Parliamentary Questions presented by Members of the European Parliament to the European Commission, asking for an official position with regard to network neutrality in Europe. The leaked draft shows that these questions remain largely unanswered.

Similar doubts on Commissioner Kroes’s approach have been raised from many civil society groups around Europe such as Bits of Freedom (NL), Netzpolitik (DE), and La Quadrature du net (FR). But the responses they received on twitter from both Kroes and her spokesperson Ryan Heath seem to suggest that these doubts will not be resolved soon.

While Commissioner Kroes tries to reassure her followers on twitter that she will safeguard net neutrality, her spokespeople continue to engage in a dispute that looks more like an attempt to defend telecoms operators’ interests rather than users’ fundamental right to have unfettered access to the internet.

However, if Commissioner Kroes’ real intent is to protect net neutrality, she should bear in mind that banning blocking and throttling is simply useless if at the same time premium services are allowed, and that neither competition nor innovation will be boosted if companies with deep pockets are able to sideline new and emerging content and application providers. As it is now, this first draft would put net neutrality under serious threat and distort rather than boost competition and innovation in Europe.

However, the Regulation is not final. After its official publication — set for sometime in September — the draft will go to the European Parliament for discussion and amendments. This gives us new hope, especially considering that the European Parliament has repeatedly asked the Commission for legislation guaranteeing network neutrality (here, here and here, for example).

Members of the European Parliament now have their work cut out for them to amend the Regulation, closing loopholes and inserting stronger protections for the principle of network neutrality in Europe. If the Regulation is adequately amended, it could mean strong, binding legislation protecting the principle of net neutrality for the entire continent.

We will anxiously await the official publication of the draft Regulation, and see how the European Parliament will react to Commissioner Kroes’ weak answer to its repeated calls. In the meantime, go to our website for more information, and take action by telling Commissioner Kroes that you want “real” net neutrality by tweeting her @NeelieKroesEU or sending her an email at [email protected].