Tomorrow a crucial vote in the European Parliament will decide whether Europe supports the principle of net neutrality. A proposal will be put before the Parliament that is headed 'open internet access' and will be touted as protecting net neutrality. However, it is highly contoversial, because it threatens to open the door to zero-rating of content. Amendments have been tabled that would protect net neutrality and their acceptance could be crucial for the future of the Internet.

The Parliament has the choice to doff its cap to the Council of ministers or to stand up for itself as a democratic institution and support its own position.

 The vote takes place in the plenary of the European Parliament tomorrow at 1pm Brussels time. This is the report of the Spanish MEP and rapporteur Pilar DelCastillo.

 Mrs Del Castillo is putting forward the Council's text and asking the European Parliament to agree to it. Both politically and substantively, this is problematic.

 Politically, this proposal has been drafted the Council of Ministers, based on an inter-governmental agreement. It is based on a premise of traffic management and not on a principle net neutrality.

 This proposal would overturn the European Parliament position, as adopted in March 2014, that incorporated specific provisions for a net neutrality principle. Whereas the Parliament would have enshined net neutrality as the guiding principle for all Internet traffic, the Council merely seeks to regulate the use of traffic management.

 The rapporteur has agreed to the proposal during trilogue meetings ( Council, Parliament and Commission) which were held behind closed doors. The substance of these discussions is not publicly known. However, the outcome clearly illustrates that she failed to stand up for the Parliament's position. This is not good for a Parliament that wants to be regarded as a strong democratic institution.

 Substantively, the Council's proposal is ambiguous. It does indeed prohibit the blocking of content, and it would seem to also prohibit the paid prioritisation of content. However, its position on zero rating is not clear, and there are different interpretations. Zero-rating is where preferred content is not counted within the limits of a bandwidth cap. In practice, it also means that the network operator increases the price for non-zerorated content by several multiples. For this reason, it will de facto result in content restrictions for users – which will also breach the rights of publishers, bloggers, innovators and e-commerce services as well as the rights of the subscribers to a network.

 One interpretation is that zero rating would be permitted, on the basis that it is not prohibited.

 Another interpretation on zero rating is that the Council chose not to address zero rating because it could not reach a political agreement. This is a very good reason why the Parliament should hold its ground, because in accepting this proposal, it is accepting political direction from the Council.

 On the other hand, industry is annoyed that the proposal does not allow traffic management which is 'based on commercial considerations'. This just adds to the ambiguity of the whole proposal, but I do wonder if it could be interpreted that operators would not be allowed to zero rate since that would be 'commercial consideration'.

 The biggest problem with the Council/Del Castillo proposal is that it fails to express the principle of net neutrality. It merely regulates traffic management, and in failing to state the principle, it will make regulation complex and messy.

MEPs will be offered the option to vote in amendments enshrining the principle of net neutrality. There are Amendments 8=19, and 9-20. On the voting list they are Article 2, § 2, after point 1 and Article 2, § 2, after point 2.

 (1a) "net neutrality" means the principle according to which all internet traffic is treated equally, without discrimination, restriction or interference, independently of its sender, recipient, type, content, device, service or application;

(2) 'internet access service' means a publicly available electronic communications service that provides access to the internet in accordance to the principle of net neutrality, and thereby connectivity to virtually all end points of the internet, irrespective of the network technology and terminal equipment used.

 MEPs have choice. To allow zero rating by default of an inter-governmental agreement or to enshrine a principle for Europe.

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More analysis at EDRi

If  you like this article then you might like myforthcoming new book The Closing of the Net  - click here for more info.

You may also like my current books The Copyright Enforcement Enigma: Internet politics and the Telecoms Package ( discussion of the  2009 Telecoms Package and copyright) and  A Copyright Masquerade: How Corporate Lobbying Threatens Online Freedoms  on copyright industry lobbying.  

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 This is an original article from Iptegrity.com and reflects research that I have carried out. If you refer to it or to its content, please cite my name as the author, and provide a link back to iptegrity.com. Media and Academics – please cite as Monica Horten, 2015, Net neutrality or zero rating? Tomorrow's EU vote will decide   in Iptegrity.com,  27 October 2015 . Commercial users - please contact me.

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