AEDH

End of net neutrality in the United States, what about net neutrality in the European Union?

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Net neutrality is a principle that guarantees equal and non-discriminatory access to all content broadcasted on the net, regardless of the operator. This principle is essential insofar as operators could offer higher or lower rates, depending on what people are willing to pay, or even prohibit access to certain sites. For instance, some Internet Service Providers (ISPs) may offer, for an additional fee, that the customer receives additional data only for the use of certain applications decided by the ISP. Net neutrality has long been unwritten. It has recently been abolished in the United States. Net neutrality avoids discrimination and thus guarantees freedom of expression, but also respect for privacy and access to information, hence leaving the choice to the consumer[1]. It also ensures fair competition between the different ISPs guaranteeing therefore innovation and competition. However, telecom operators consider that net neutrality is expensive and hinders the development of their infrastructure[2].

Net neutrality at the European level  

On December 14 2017, the Federal Communications Commission in the United States repealed the principle of net neutrality. The arguments put forward by its opponents, mainly telecom operators, are the costs of network infrastructure and the need for regular modernization[3]. At European level, Regulation 2015/2120 adopted in November 2015[4] guarantees the open internet and prohibits ISPs from discriminating against the user on the basis of the origin or destination of the data and thus guarantees the rights of the subscriber in terms of speed and quality of internet service[5].

Is this regulation respected?

As a reminder, a European regulation has a general and binding scope in all its elements and is directly applicable in all the countries of the EU[6]. According to a report by BEREC[7], the Agency that brings together the twenty-eight European electronic communications regulators, national regulatory authorities have demonstrated an active application of the Regulation, particularly with regard to the prohibition of the blocking of applications and the discriminatory treatment of specific traffic. The main points to be reviewed, according to the BEREC report, are a lack of transparency in the contracts offered to Internet users, the difficulty for the customer to control the actual speed provided by the operator and the commitments regarding network speed[8].

Although according to BEREC the results are rather positive, some concerns persist however, such as the 5G “blackmail”, the priority way and especially the practice of the ‘zero rating’[9]. Indeed, some ISPs believe that only 5G can offer certain services that require a fast network, and thus try to come back on the European Regulation by claiming that the neutrality of the net does not allow such a speed[10]. The priority way is the fact that ISPs would like to accept this practice allowing some content to benefit from faster traffic, which is completely opposed to net neutrality[11]. Finally, the practice of zero rating, more worrying insofar as this practice, although closely monitored by regulators, is not prohibited, allows an operator to offer certain content on an unlimited basis, thus changing the competition between contents. The only condition imposed by the Regulation is that this practice shall not lead to the slowing down in the other services[12].


What about personal data?

The link between net neutrality and the breach of personal data protection is not very explicit. In 2011, the European Data Protection Supervisor warned that violations of net neutrality could lead to “serious implications” for the fundamental rights of internet users in terms of data protection and privacy. “Certain inspection techniques used by ISPs may indeed be highly privacy-intrusive, especially when they reveal the content of individuals’ Internet communications, including emails sent or received, websites visited and files downloaded”[13].

Beyond the protection of privacy and personal data, the guarantee of fair access to all internet content for all users, net neutrality also guarantees innovation and competition, contrary to the arguments advanced by its detractors. Indeed, giving up on net neutrality will favour the providers of already established content who can afford to pay for their content to be loaded more quickly, and thus encourage consumers to use these services and not those of new businesses, thereby hindering competition and innovation. Europe could perhaps benefit from the United States abandoning net neutrality, since the European market, faced with the non-neutral American market, will see small innovative companies develop, which could strengthen the European digital industry.

Net neutrality is therefore a principle necessary for the democratic functioning of the internet, innovation and competitiveness as well as the protection of personal data. A priori the abandonment of net neutrality by the United States will have no impact on net neutrality in the European Union, and could even benefit to the development of a European digital industry against the US giants. AEDH is pleased that such a Regulation exists within the European Union and will ensure that policy-makers do not give in to the demands of internet operators. However, AEDH strongly regrets that practices such as ‘zero rating’ are not formally prohibited by the European Regulation.

[1] EDRi, ‘net Neutrality’ issue 08, –  https://edri.org/files/EDRi_NetNeutrality.pdf

[2] Le Monde, ‘En Europe, la neutralité du Net est garantie par la loi mais risque d’être écornée’, 14.12.2017 –
http://www.lemonde.fr/pixels/article/2017/12/13/en-europe-la-neutralite-du-net-est-garantie-par-la-loi-mais-risque-d-etre-ecornee_5229055_4408996.html

[3] Le Monde, ‘Les Etats-Unis abrogent la neutralité du Net, un principe fondateur d’Internet’, 15.12.2017 –
http://www.lemonde.fr/pixels/article/2017/12/14/les-etats-unis-abrogent-la-neutralite-du-net-un-principe-fondateur-d-internet_5229906_4408996.html

[4]Règlement européen (UE) 2015/2120 du parlement européen, 25.11.2015 http://eur-lex.europa.eu/legal-content/FR/TXT/?uri=uriserv:OJ.L_.2015.310.01.0001.01.FRA

[5]RTBF.BE, ‘Check Point: la neutralité du Net existe-t-elle en Europe?’, 14.01.2018 – https://www.rtbf.be/info/monde/detail_check-point-la-neutralite-du-net-existe-t-elle-en-europe?id=9808462

[6]Le règlement de l’Union européenne, 30.08.2015 –  http://eur-lex.europa.eu/legal-content/FR/TXT/?uri=LEGISSUM%3Al14522

[7] BEREC, Report on the implementation of Regulation (EU) 2015/2120 and BEREC Net Neutrality Guidelines, 7/12/2017 – file:///C:/Users/USER/Downloads/7529-berec-report-on-the-implementation-of-re_0.pdf

[8] See footnote 5

[9] The Conversation, ‘La neutralité du net est-elle vraiment neutre ?’, 21.12.2017 – ’http://theconversation.com/la-neutralite-du-net-est-elle-vraiment-neutre-89418

[10] La Quadrature du Net, ‘Neutralité du Net : un an après, un bilan gris foncé’, 31.05.2017 –  https://www.laquadrature.net/fr/Neutralit%C3%A9-du-Net-bilan-gris-fonc%C3%A9

[11] See footnote 5

[12]Ibidem.

[13] EDRi, ‘net Neutrality’ issue 08, p16 –  https://edri.org/files/EDRi_NetNeutrality.pdf

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