The Closing of the Net  "original and valuable"  Times Higher Education

The UK government is trying to sneak in the transposition of the Telecoms Package, acccording to a Parliamentary answer given by the Minister Ed Vaizey. His answer  said  that it will be transposed by Statutory Instrument (SI) in April.  


The use of an SI  is likely to mean that Parliament does not get to vote on it, but simply is asked to approve. Without any public debate, and with the large telcos such as Vodafone, sweet-talking the Ministries, this means that UK Internet users stand to lose out.


Why is this important? The Telecoms Package contains a provision which gives regulators  - ie Ofcom - a duty to promote the ability of Internet users to access content, services and applications. This provision, weaker than what

was desired, was nevertheless intended to send a political signal to regulators that they must promote an open Internet. This provision, as far as I can see, has been excluded from the government's consultation which will form the basis of the transposition.


What is not clear is whether ‘not consulting' means they will transpose directly, or whether it means they will ignore. It should therefore be questioned whether they intend to transpose it. 


Then there is another set of provisions which also are not referenced in the consultation.  - inserted, if not by, then with the approval of, our very own industry-cuddly regulator, Ofcom. These provisions legitimise the practice of blocking content, services and applications by broadband providers. They are  very important in the context of the net neutrality debate, because they  legitimises the non-neutral practices of operators.


 To be precise, the text states that EU law neither mandates nor prohibits conditions limiting access to and or use of content, services and applications.  (Universal Services directive, Article 1.3, and Article 20 - see my coverage in the Telecoms Package sections of


It therefore matters a great deal whether the government intends to transpose directly, or ignore them. The government's consultation  says nothing about them.


It may be that the government is relying on Ofcom's consultation on traffic management and net neutrality conducted last year. This consultation ran in  parallel with the European Commission's net neutrality consultation - requested by the European Parliament at the end of the Telecoms Package.


That is not necessarily good news for Internet users.


Ofcom's position, as explained to me recently, is that  the law already allowed operators to block, and therefore nothing has changed. But should this mean  they can hold up their hands and say ‘we ain't done nothin' wrong guv'? There is a subtle difference between the law saying nothing and the law explicitly saying that it does not prohibit.


The law said nothing, because it was not a problem, nor even a foreseable one, when the law was drafted in 2003. In   2011, we know it is happening, and many users are unhappy.


The Telecoms Package  provisions oblige operators to inform their customers about the blockages, and Ofcom deems that to be sufficient.  Many, including myself,  have argued that this merely legitimises a practice, but does nothing to regulate it. 

The government is now analysing responses to its Telecoms Package consultation, with the  intention of bringing the Statutory Instrument before Parliament in April.


We should therefore ask about the government's proposals for these provisions.



 Here is the Parliament written question from tom Brake MP, and the answer from the Minister for Communications, Ed Vaizey, as published in Hansard on 16 February 2011. 


Tom Brake: To ask the Secretary of State for Culture, Olympics, Media and Sport what steps he plans to take in respect of implementation of the EU Electronic Communications Framework.

Ed  Vaizey: DCMS is currently implementing revisions to the EU Electronic Communications Framework. The deadline for implementation is 25th May 2011. Following a public consultation which ran between September and December last year officials are currently analysing responses. We will publish the responses to that consultation and revised impact assessments In March and lay the statutory instruments that will enable legislative change in April. 


This article is licensed under a Creative Commons Attribution Non-commercial-Share Alike 2.5 UK:England and Wales License. It may be used for non-commercial purposes only, and the author's name should be attributed. The correct attribution for this article is: Monica Horten (2011) 1 March 2011







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