Network Neutrality undermined by discriminatory practices by European network operators

Access is hosting an event on Net Neutrality on 4 June in Brussels at the European Parliament from 9:00-12:00. It will feature keynotes from Vice-President of the Commission responsible for the Digital Agenda, Neelie Kroes. You can find more information here.

Update: In a speech on 30 May to the European Parliament Internal Market and Consumer Protection Committee (IMCO), Commissioner for Digital Agenda Neelie Kroes asked European Parliament to join her in “building something special” between now and the EU elections. She said, “I want you to be able to say that you saved their right to access the open internet, by guaranteeing net neutrality.” However, as we have pointed out in the post below, the European Parliament has asked the Commissioner for action on network neutrality repeatedly (e.g. here and here). While this is certainly a notable change in tone for the Commissioner, the details as to what she has in mind remain unclear. We look forward to her keynote address at an event, organised by Access and co-hosted by Marietje Schaake and Sabine Verheyen where we hope she will provide more insight into this very important issue.

After the recent announcement by Germany’s largest telecommunications company, Deutsche Telekom (DT), of further restrictions on internet access for their customers, people took to the streets. Frustrated citizens gathered in front of the company’s annual general assembly to protest against the ongoing violations of their fundamental right to access an open and neutral internet.

The latest decision by the German giant imposes strict data caps on internet access contracts while granting data allowance exceptions to company’s own proprietary streaming services, “T-Entertain.” The company goes on to grant preferential treatment to other select services, such as the popular music streaming service Spotify, ahead of other competitors, effectively imposing anti-competitive limitations on markets such as those for legal online music.

This is not the first time Deutsche Telekom has restricted its users’ access to the internet. In 2009, the German provider arbitrarily prevented their users to use Skype on their iPhone, claiming that the corresponding data traffic would have hindered their network performance.

No net neutrality in Europe

Preferential treatment, together with other practices commonly employed by operators, such as blocking websites, applications, or services, and/or slowing internet speeds, are all forms of network discrimination. Network discrimination is the opposite of neutrality, the guiding principle that preserves the very essence of the internet, its openness and free accessibility: the qualities that have made the internet both a promoter of freedom of expression, but also the generator of innovative ideas, value creation, and effective competition.

Network discrimination is a real and growing problem in Europe. A recent investigation by the Body of European Regulators of Electronic Communications (BEREC) found that roughly 20 percent of EU internet user contracts allowed for ISP restriction of services such as Voice over IP (e.g. Skype, Viber) and peer-to-peer (e.g. Bitcoin, Spotify).

These discriminatory practices have drawn the attention of civil rights groups across Europe– including European Digital Rights ( and the European Consumer Association (BEUC)–who collectively called on the European Commission in a letter to demand the end of arbitrary interference with the functioning of the Internet in Europe, and to take action to preserve the neutrality of the internet before such practices (by DT for instance) become an industry norm.

Many citizens across Europe are forced to use non-neutral internet services, as a result of telecommunications companies abusing their dominant position to limit users’ access. With only few telecommunication companies providing internet services in a given country, many European countries lack effective competition, making “switching” providers an impossibility. This discrimination infringes upon citizens’ fundamental right to have unfettered access to the internet, recently declared by the United Nations as a basic human right.

Pragmatic solutions lack political support

In the last few years the European Parliament has supported the need for legislation that would regulate net neutrality, by adopting two resolutions (here and here). Both of these resolutions emphasize the importance of safeguarding the open and neutral internet as an important driver for economic growth, job creation, innovation, and European competitiveness.

Furthermore, certain members of the European Parliament have addressed several Parliamentary Questions to the European Commission, asking for an official position with regard to Network Neutrality in Europe. One of the most recent–sent on 22 April by the Italian Member of the European Parliament (MEP) Aldo Patriciello (European People’s Party/EPP)–asked Commissioner for the Digital Agenda Neelie Kroes to protect Network Neutrality as a key tool to ensure the completion of the European online market.

The question addressed by the EPP MEP refers in particular to a press release published on 23 March, where the European Commission launched its “Startup Europe” campaign to encourage and inspire EU web entrepreneurs to achieve similar successes to those of Skype and Spotify. Many of today’s most successful applications were able to enter the market on a neutral playing field, allowing them to develop alongside other more dominant, pre-existing players.

However, an oligopoly of telecommunication companies–who control almost all private access to internet in Europe–are currently in a position to restrict the access to the market to certain applications (such as VoIP and Peer-to-peer), and support their own services online at the expense of smaller competitors. If Commissioner Kroes and the Commission fail to prevent known abuses of Internet neutrality, effectively allowing telecommunications companies to arbitrarily block these emergent innovative services at their discretion, this will crush innovation, undermining the goals of the Startup Europe campaign and preventing the growth of the European startup scene.

Despite ample evidence of network discrimination, the Commission has adopted a “wait and see approach.” After four consultations on “The open Internet and net neutrality in Europe,” the Commission plans now to publish its non-binding ‘Recommendations on the Open Internet and Net Neutrality’–but not before the end of 2013. In particular, Commissioner Kroes, once a strong proponent of Network neutrality, seems to have abandoned her commitment to ensure an open and neutral internet, and now is insisting on the need for telcos be transparent in order to allow consumers to “vote with their feet.”

But transparency and “switching” are simply not a solution if there is no real competition in the market. While these are by all means mechanisms to foster the flourishing of the online market, they do not effectively enable citizens to exercise their fundamental rights and enjoy their freedom of expression by being able to access an open and neutral Internet.

Net neutrality: the foundation from which human rights can thrive online

The debate around net neutrality is not just a competition issue. In fact, dealing with net neutrality exclusively from a competition perspective–for instance, restricting traffic management based on anti-competitive reasons–risks overlooking the broader significance of net neutrality as the foundation from which human rights may flourish online.

The internet owes much of its success to the fact that it is open and easily accessible to everyone. Since its inception, the internet has connected us and enabled communication on an unprecedented scale, enriching our experiences and ability to exercise our rights, such as access to information and education and freedom of expression and association. Indeed, its openness is at the epicenter of the Internet experience, and neutrality is the Internet’s defining promise.

In order to ensure the internet’s continued success and allow consumers to have unfettered access to Internet service offers that truly meet their needs and to enable them to effectively exercise their fundamental rights, the neutrality of the web must be protected. Therefore, given the many implications of network discrimination, “wait and see” is not enough to preserve the open internet – legislation is needed.

If Network Neutrality becomes law, it would prevent telecommunication companies from discriminating traffic across the web, and promote equal and high quality access to the internet that we’ve come to depend on.

On the 29th and 30th May, Access will participate in discussions on Net Neutrality at the Council of Europe, during their “Multi-stakeholder dialogue on Network Neutrality and Human Rights” in Strasbourg. Soon after, on 4 June, Access, in collaboration with MEP Marietje Schaake (ALDE) and Sabine Verheyen (EPP), will co-host an event at the European Parliament in Brussels on “Guaranteeing Competition and the open internet” to discuss the future of the internet as we know it.

The debate will be opened by Vice-President of the European Commission Responsible for Digital Agenda, Neelie Kroes, and will be liven up by representatives from European institutions, civil society (including our Senior Policy Analyst, Raegan MacDonald), academia, and from the telecommunication industry. You can access the full programme here.

In anticipation of what is sure to be a very interesting and lively debate, check out our Network Discrimination page and learn more about this issue through our Q&A.