Opt-outs for self-regulatory filtering and FacebookZero plans? Is this really net neutrality?

The Council of Ministers is to focus on net neutrality and roaming and throw out the remaining provisions in the EU Telecoms Regulation. It's aiming for an agreement by March, so that it can open negotiations with the European Parliament. Unfortunately for those who may be hoping for a net neutrality law in Europe, the discussions are going the wrong way, with a number of get-outs being proposed to help those governments that want to permit their Internet providers to block, filter or favour.

Earlier this week the new European Commissioner for the Digital Single Market, Günther Oettinger, hosted a Ministerial dinner to discuss the key outstanding issues in the EU Telecoms Regulation. This is a new piece of legislation that was adopted last April by the European Parliament, where a series of strong net neutrality provisions were incorporated. It is now with the Council of Ministers which has to work out its position. Discussions have now begun in earnest in the Council's Justus Lipsius building where technical experts will try to put together some text that can be agreed by all 28 Member States.

The Latvian Presidency, that has just taken over from the Italians, has drafted a plan for taking forward the discussions on the Telecoms Regulation - formerly known as Connected Continent, but now being re-named the Telecoms Single Market. It is asking the Council's telecoms experts to spend the next month or so working on the technical elements of the outstanding problems with regard to net neutrality and roaming.

Work on spectrum regulation - this was the other remaining element in the Telecoms Regulation - will be dropped. It will be moved forward to the full review of the telecoms framework that becomes due next year.

As the Presidency sees it, there are three key issues for the net neutrality discussions. Firstly, specialised services, and in this respect the Council is proposing to write a new definition of Internet access. Secondly, whether blocking and filtering can be permitted under EU law. And thirdly, whether so-called 'Facebook Zero' data plans should be disallowed. Zero-rated data plans are a pricing mechanism to favour certain content or services by offering them 'free' within the user's monthly data allowance. Anything that is not 'free' counts against the allowance, and the user could end up paying an expensive tariff for it.

The need to get agreement is where the problem lies. There is a clear split in the Council between those governments that support a net neutrality law (eg Netherlands, Slovenia) and those who oppose it (eg Britain).

The Council has had legal advice to the effect that blocking and filtering raise legal problems with regard to fundamental rights and privacy. That is the point which concerns the British government, because filtering by broadband providers on a "voluntary basis" is effectively illegal.

The proposal to ban zero-rated content in data plans is an innovation of the Latvian Presidency. It was not addressed by either the European Commission or the Parliament. However, it looks as though it has been immediately attacked and the Presidency is concerned that it will not get majority support.

Indeed, it is going to be very difficult to get agreement without quite a lot of manoeuvering, and that is likely to result in a bodged compromise that will suit nobody, and almost certainly will not protect net neutrality.

Hence , the Latvian presidency is proposing an opt-out for those governments that want "self-regulatory" content filtering regimes, such as Britain. Likewise, there may be an opt-out for the ban on zero-rated data plans (positive price discrimination). This would mean that countries could choose to permit these kinds of plans and permit content filtering, if they chose.

In this situation, instead of a single market, there would exponentially many different markets. Or, there will be no choice at all because everything is either filtered or too expensive, and only a handful of favoured services will be accessible and economic. It really does not make sense to go this route. It may seem like an easy path today, but it will only create a build-up of problems for the future.

For my previous coverage of the Telecoms Regulation (Connected Continent) see all of my postings under the 'Net Neutrality' menu heading. They include EU telecoms rules - smokescreen lifts over telco specialised services and Permission to stream - how new EU telecoms rules violate net neutrality ).

To understand the political context to the Telecoms regulation (Connected Continent) , see my book The Copyright Enforcement Enigma - Internet Politics and the 'Telecoms Package' which discusses the 2009 Telecoms Package and the processing of it by the European Parliament.

If you are more interested in how the lobbying operates in the European Parliament, then you may also like my other book A Copyright Masquerade: How Corporate Lobbying Threatens Online Freedoms

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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, Working towards a disconnected Continent - net neutrality gets the EU Council treatment, in Iptegrity.com 22 Januaryl 2015. Commercial users - please contact me.

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Tags: net neutrality, EU Telecoms Regulation, EU, FaceBook zero, Council of Ministers, European Commission, zero-rated, data plan, European Parliament, Connected Continent, Telecoms Package, telecoms reform package.

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