Limiting conditions from SFR in the small print

Does the net neutrality consultation mean that the  EU will take on the citizens' concerns for civil rights and freedom of expression,  as they were expressed in the Telecoms Package debate of  2009?

Earlier this month, the European Commission launched a consultation on net neutrality. The fact that this consultation exists at all is due to the power of citizen lobbying during the

progress of the Telecoms Package through the EU legislature  in 2009.

 That is when the issue of net neutrality became ‘hot' in policy terms. There was a lobbyists'  fight over amendments to the Telecoms Package which arguably eroded net neutrality. The outcome of 4 November 2009   produced a demand from the European Parliament to the Commission to address the net neutrality formally in policy terms. The Commission has acknowledged this in its consultation document.

 The upshot is that EU policy-makers have been forced  to drop their old mantra which used to sound something like this: "because there is competition in European telecoms, therefore we do not need to address net neutrality".

 Competitive markets do indeed  put European policy on a different footing from US policy.  However, EU policy-makers   appear now to recognise that net neutrality issues do arise even in a competitive telecoms marketplace,  such as the EU (theoretically at least)  is. The  end-to-end  principle and open architecture on which the Internet is based, can break down in a competitive environment, and it can  do so  in a variety of different, unpredictable, ways.

 The European Commission's consultation on net neutrality begins with  the premise that the open and neutral character of the  Internet must be preserved. This appears now to be established as  a policy principle, which it arguably was not previously.  Indeed, the European Commission  now states that it is ‘the will of the European Institutions to enshrine this goal as a policy objective and regulatory principle to be promoted by the national regulatory authorities...'  Thus, the Commission is saying that there is agreement between it and the other two  EU institutions  - Parliament and Council - on this policy principle.

This should be good news for the citizens' groups who campaigned so hard for it.  Their argument was that actions by operators to, for example, block voice-over-ip services such as Skype,  or to throttle P2P and  video services, could be considered an infringement of civil rights, for example, of freedom of expression. They were concerned that certain amendments to the Telecoms Package - and the language of ‘conditions limiting access to and or use of services and applications' - could enable operators to go ahead with, and extend any existing use of - such blocking and throttling. For example, see this advertisement from the  French network operator SFR, where the offer of "unlimited Internet" actually blocks peer-to-peer, voice over IP, and  news groups.

 It seems that these arguments impressed MEPs to the point where they made the request of the Commission to put net neutrality firmly on the EU policy agenda.

The Commission's  consultation is a professional exercise. It  shows some  integrity in policy-making and for this it should be commended.

 (Unlike,  for example, the UK's Ofcom, which is only consulting on how users should be informed about traffic management, under the cloak of net neutrality.)

But - and there is always a ‘but' - the way the European Commission Consultation is constructed, it is not quite so clear whether the Commission has really absorbed the civil rights and citizenship  issues.

The consultation concentrates  on the behaviour of the network operators and their  use of so-called "traffic management".  It does so in the belief that this is the main cause of concern.

However,  the consultation has a number of key failings. The Commission  assumes net neutrality  only relates to commercial content, using words like ‘consumer' and ‘value chain'.  It fails to address non-commercial content, applications and services, such as political content.

It assumes that there are always two parties involved, and that a resolution can be arrived at using commercial competition law. As the UK legal expert Chris Marsden, of the University of Essex,  highlights, it is an ‘n' sided market - there are generally more than two parties involved.  And as I have previously argued, competition law is inadequate to address the citizenship issues related to network blocking.

Relying on  the Telecoms Package, the Commission claims that ‘transparency' is a key tool for the regulators who wish to address net neutrality problems. What the Commission fails to recognise is that the one-sided "transparency" in the Telecoms Package is more likely to result in a consumer backlash than a regulatory resolution, as Chris Marsden also points out.   When users are actually told how the network operators are restricting them, they won't say "I will  go somewhere else" they will ask "why is this  operator  allowed to restict me?".

The European Commission assumes that "quality of service" regulation will resolve the net neutrality issues, as per the Telecoms Package Article 22.3, and consults on how this could be implemented. It fails to recognise  that  this is a fallacious approach. Technical  experts  in network management whom I have spoken to - the back-room boys who keep the networks running -  will all say that regulating on quality of service will create a patchwwork  across Europe. It will damage the Single Market in respect of Internet services.  ( See also Chris Marsden )

The Commission's net neutrality consultation also fails to address the real business reasons behind the operators' use of  "traffic management". Specifically, the under-investment in the back-haul. This is believed by many to be the real cause of the congestion probems which they claim to be solving with "traffic management".

Nor does the net neutrality consultation address new issues arising, such as content data networks. How do CDNs fit into the overall net neutrality picture?

Finally, in spite of the  grand and positive opening, the European Commission's approach is to keep citizenship and civil rights  issues,  such as freedom of expression, separate from net neutrality.  The final  question  asks about freedom of expression. It's almost a throw-away question. The Commission feels it ought to be there, but does not really know how to address it.  

We have to hope that this is not indicative of how the European Commission will handle the outcome of the net neutrality consultation. Although telecoms framework law concerns the internal market only, the ability of the Commission to work across DGs would permit it to consider citizenship aspects if it chose to.

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For more on European policy on net neutrality and the Telecoms Package debate, please see my extensive coverage on iptegrity.com in the sections which address the Telecoms Package.

For another opinion on the European Commission's Net Neutrality consultation, see Chris Marsden's response on Questions 1-10 , and 11-15

Read the European Commission's Net Neutrality Consultation document 

This article is licensed under a Creative Commons Attribution Non-commercial-Share Alike 2.5 UK:England and Wales License. http://creativecommons.org/licenses/by-nc-sa/2.0/uk/ 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 (2010) Will EU net neutrality policy throw away civil rights?  http://www.iptegrity.com 16 July 2010 .