After President Obama’s recent statement in support of a strong net neutrality law, many European citizens will be disappointed at the EU’s latest  position as the political battle for the Internet reprises.

 The EU's  net neutrality battle is starting up again after a few months' hiatus. It’s all happening around the Telecoms Regulation, that was adopted last March by the European Parliament with a ground-breaking provision to enshrine net neutrality into EU law. Naturally, the large telecoms corporations are up in arms against it, and now documents - seen by Iptegrity -  have emerged  from the Council of Ministers that reveal an attempt to erase it. And, the Council proposals will enshrine traffic management  as the principle for running the Internet.

When the European Parliament  voted on the Telecoms Regulation that was only the first stage of the process. (see Net neutrality & data retention – Europe pushes back against a corporatised Internet) It still has to be adopted into law.

The new Juncker Commission aims to get the Telecoms Regulation adopted in double-quick time by early 2015. It’s not actually the Commission’s decision though, and that is important to know.

It is now moving into a new stage which means it has to go to the Council of Ministers - the governments of the 28 countries. The Council is examining it for the first time, and needs to come to its own position. That’s what this is all about.

 The speed of progress is dependent on the Council and it will be determined by a meeting later this week. If the Council does not reach an agreement at that meeting, then the whole thing will be deferred until early next year. 

 The Council of Ministers  is wrestling with the contradicting political positions from governments such as the Netherlands, which has a net neutrality law – and the UK, which wants to protect the nether regions of its Internet Service Providers (such as BT, Virgin, TalkTalk, Sky) who are filtering content.

However, the Council's proposal is not a compromise. It will delete the definition of net neutrality inserted by the European Parliament, (see EU Parliament net neutrality battle comes to a head ) and also the definition of specialised services. These definitions were key to ensuring legal clarity.

The Council’s proposal fails to address prioritisation of content, specialised services or zero rating – all of which were addressed by the solid texts adopted by the  European Parliament.

 As an alternative to the European Parliament’s provisions, the Council is promoting what it calls a ‘principles-based approach’. But when you read closely, this is not about a  principle of net neutrality, it is about principles for traffic management – in other words, for the exact opposite:

 Clear principles for traffic management in general, as well as the obligation to maintain sufficient network capacity for the internet access service regardless of other services also delivered over the same access.

The Council’s proposal effectively legitimises unregulated traffic management. There is a series of exceptions (the ‘principles’) where the ISPs may use traffic management techniques – that is blocking, throttling and filtering – against end-users, and those exceptions leave the gate wide open to a long list of possible actions, including copyright enforcement, parental controls, defamation, and so on.

 This  is a get-out clause by which any ISP could block, filter or take any other action  and escape all regulatory consequences. My interpretation is that  the regulators are being told to lay down harmonised conditions for traffic management. This is quite the opposite of protecting net neutrality. It would seem to be the nuclear option to dispose of  net neutrality once and for all.

Moreover, the EU Council's text omits any reference to the duty of Member States to guarantee the right to freedom of expression  - which must be guaranteed for both the end-user and the content provider. Indeed, this new proposal  would seem to provide an umbrella under which network providers could freely violate the right to freedom of expression with no danger of the regulator’s fist coming down on them. There is no obligation or duty on the regulators to protect free speech rights,  even though the Member States have an obligation to do so under the EU Treaties.

The Council’s text  also contains some serious contradictions. Processing of data must be necessary and proportionate  to achieve the aims – which is correct under EU law – but the implied  aims have no fixed timeline, and involve continual monitoring and interference of users’ traffic. 

 The politics behind all this is complex. The large telecoms providers are threatening to withdraw investment in networks, if the EU imposes a net neutrality rule.  One can draw parallels with the position in the US, although it is not exactly the same. Ultimately, the question is what both will do about it?

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There is more  analysis from European Digital Rights (EDRi)  with comment on the regulatory position,  and La Quadrature du Net which calls it a ‘betrayal’ of EU citizens. 

If you like this article,  then you may also like my  books:

  A Copyright Masquerade: How Corporate Lobbying Threatens Online Freedoms  " brilliant exposé "

The Copyright Enforcement Enigma Internet Politics and the Telecoms Package "excellent work of scholarship "

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, 2013, Is the EU Council trying to nuke net neutrality?   in Iptegrity.com 25 November 2014. Commercial users - please contact me.

 Tags: EU,  Telecoms Regulation, European Commission, European  Parliament, Connected Continent, net neutrality, Internet,  Telecoms Package, law, commission, council, specialised services, traffic management, zero rated, prioristised Internet traffic.

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