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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  peppered

with 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


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The correct attribution for this article is: Monica Horten (2011) EU Commission on Net Neutrality: will it ever crack  the whip? 20 April 2011  

 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.

Iptegrity in brief is the website of Dr Monica Horten. I’ve been analysing analysing digital policy since 2008. Way back then, I identified how issues around rights can influence Internet policy, and that has been a thread throughout all of my research. I hold a PhD in EU Communications Policy from the University of Westminster (2010), and a Post-graduate diploma in marketing.   I’ve served as an independent expert on the Council of Europe  Committee on Internet Freedoms, and was involved in a capacity building project in Moldova, Georgia, and Ukraine. I am currently (from June 2022)  Policy Manager - Freedom of Expression, with the Open Rights Group. For more, see About Iptegrity is made available free of charge for  non-commercial use, Please link-back & attribute Monica Horten. Thank you for respecting this.

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