The European Commission Communication on The open internet and net neutrality in Europe is mostly disappointing, failing to stand up to the telecoms operators. But there may be just a hint that the Commission could bring out the whips if they don't behave.
The European Commission has revealed its official view on the open internet and net neutrality. It comes in a follow-up report to last year's official consultation, released this week.
At first sight, it seems very industry-cuddly, reiterating views expressed by the telecoms industry lobbyists and by some regulators who support them, such as the UK's own Ofcom. But, when one reads it in full, it does seem that the Commission could be holding the whip behind its back - if only it can get the courage to use it.
The report has been criticised for being weak and ineffective, and it does bear all the hall-marks of a classic cop-out. It is pepperedwith language suggesting the "need for definitive evidence", "more exhaustive fact-finding", and so on before any decision on net neutrality can be taken.
The Commission maintains the reliance on competition law, and leans heavily on BEREC, the new EU regulatory body. BEREC noted examples of throttling and blocking but did not fully analyse the information to distinguish between blocking and paid-for prioritisation. It also put forward that media pressure from citizens' groups is sufficient to address these situations.
The reason this is a weak stance is that competition law is ineffective in dealing with non-neutral behaviour, because it is intended to deal with access problems, and does not have the power to deal with problems relating to content blocking.
BEREC's input seems to be a little remiss, and rather too forgiving oflazy regulation, given the extent to which the Commission relies on it. The BEREC is in turn influenced by the major regulators such as Ofcom. In that sense it becomes a vicious circle, where, for example, Ofcom could lobby the Commission and the Parliament in Brussels, and then sends the same briefs to its representatives at the BEREC.
Further criticism comes from the citizens' advocacy group La Quadrature du Net , which called the report disappointing and said it hid ‘behind false free-market arguments' and compared it with a recent French Parliament report which denounced anti-competitive behaviour.
But two things struck me about the European Commission's net neutrality positioning. It does acknowledge that fundamental rights are engaged in relation to the issue of network blocking. This might not seem like much, but it is a small change over their previous positioning, which failed to even consider the relevance of citizens rights. The fact that it now does so, is a direct result of citizen lobbying and the European Parliament insisting on the Commission taking it seriously.
Then it states: " if significant and persistent problems are substantiated ... the Commission will assess the need for more stringent measures.... This could include the prohibition of the blocking of lawful services."
This is the whip that threatens the operators. They do not want any such stringent measures. It will take a lot of guts in DG Information Society to use it. We don't know if they have the stomach for it.
Communication From The Commission To The European Parliament, The Council, The Economic And Social Committee And The Committee Of The Regions: The open internet and net neutrality in Europe
The correct attribution for this article is: Monica Horten (2011) EU Commission on Net Neutrality: will it ever crack the whip? http://www.iptegrity.com 20 April 2011
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