Net neutrality: where do we stand in Europe?

By 27 February 2012 13

On February 27, 2012, I organised a conference at the European Parliament on net neutrality in Europe. Further information and the programme are available here. The conference was hosted by Ms Gallo MEP.

Net neutrality is a principle, or an ideal, according to which a public network should treat all content, sites, platforms, modes of communication, etc. equally so as to prevent any restriction in the communication process. This principle conflicts with the goal of efficiency, as basic management of the network is needed to reduce security risks and to limit spam.  Further, experts consider that traffic discrimination is needed to improve the quality of services in the context of limited bandwidth. Such discrimination could, however, be anticompetitive if an operator accelerates the traffic of some online providers and slows down that of others. Network operators also claim that the huge investments required for next-generation infrastructure should be shared with the large online service providers who generate the most traffic. In turn, some media companies consider that the connections with illicit sites should be slowed down. On the other side, activist groups claim that any traffic management is incompatible with freedom of information.

Torn between these opposing claims and objectives, the ideal of net neutrality is not easy to implement.

This conference on net neutrality is timely as it coincides with the debate currently taking place in the EU.

On April 19, 2011, the Commission published a Communication  titled “The open internet and net neutrality” (this Communication will be presented and discussed by G. Abbamonte of DG Infso during the conference of Febr. 27, 2012).  Thereafter, on November 17, 2011, the European Parliament adopted a resolution which “draws attention to the serious risks of departing from network neutrality”. On October 26, 2011, the European Economic and Social Committee issued an Opinion on the Commission’s communication “The open Internet and net neutrality in Europe”. Last but not least, the Guidelines on net neutrality and transparency of the BEREC (Body of European Regulators for Electronic Communications) are expected for 2012.

But other regulators in Europe already released reports outlining their approach to net neutrality:

– Norway: Network neutrality. Guidelines for Internet neutrality drawn by the Norwegian Post and Telecommunications Authority on the basis of a voluntary agreement between stakeholders (those Guidelines are presented by H. Krohg of Telenor: download H. Krohg’s presentation in ppt);

– France: Sept. 2010 “Ten Proposals” following the 2010 consultation. Two new consultations of launched in Dec. 2011 on quality of Internet access and the collection of data on interconnection here (G. Mellier of ARCEP presented the state of the discussion in France : download G. Mellier’s presentation in ppt);

– UK: publication in November 2011 of the OFCOM’s approach to net neutrality based on a 2010 consultation.

The Netherlands is the sole country in Europe that opted for a regulation by law. Prompted by the KPN announcement that it would charge customers extra for accessing certain Internet applications (such as Skype’s VoIP), one of the Chambers of the Dutch Parliament voted  a law on net neutrality in June 2011. Following the Dutch developments, the Belgian Post and Telecommunications Institute, in October 2011, issued an Opinion on the pending amendments to the electronic communications law submitted to the Belgian Parliament in order to ensure net neutrality.

In a speech of 3 October 2011 (Investing in digital networks: a bridge to Europe’s future), Commissionner Kroes stressed: “I regret very much that The Netherlands seems to be moving unilaterally on this issue. We must act on the basis of facts, not passion … For example, requiring operators to provide only “full internet” could kill innovative new offers. Even worse, it could mean higher prices for those consumers with more limited needs who were ready to accept a cheaper, limited package. I have asked BEREC, where all Member States’ telecom regulators are represented, to give me facts and figures on transparency, blocking, throttling, and switching. It is very important that we wait for the facts and figures before acting. And if we do need to act, we must do so in a coordinated way across Europe“.

It is important to have the right facts and to understand the technical issues beyond traffic management. As put by OFCOM’s report, “the appropriateness of different approaches to traffic management is at the heart of the Net Neutrality debate” (p. 3).

The conference thus starts with a presentation of those technical issues (download R. Laroy’s presentation, Belgian Regulatory Authority in ppt). Ph. Defraigne of Cullen International summarized the economic issues underlying the net neutrality debate, including whether large service and content providers, as principal beneficiaries of Internet traffic, should contribute to the investments needed to build the future networks (download Ph. Defraigne’s presentation in ppt). P. Larouche, Professor at the Tilburg University, then addressed the regulatory issues, in particular whether an ex ante regulation might be needed on top of the regulation by competition law (download P. Larouche’s presentation in pdf). Jasper Sluijs, Ph. D. researcher at the Tilburg University, then discussed the freedom of expression issues that are usually associated with the net neutrality debate (download J. Sluijs’s presentation in pdf).

The position of the stakeholders vary quite substantially. The operators, as expected, favor a light regulation of traffic management and net neutrality (see AT&T (here) and Orange (download V. Hennes’s presentation in pdf)). The service and content providers claim that the traffic for Voice over IP (VoIP) service or Internet television (IPTV) is sometimes slowed down by operators, and that a more robust regulation and a more efficient enforcement of the neutrality principle are thus needed (see the view of Skype (here) and of the BBC (download D. Wilson’s presentation in ppt).

The Internet Society, a non profit organisation whose tasks include, among others, the definition of Internet-related standards, favors a clearer definition of what a reasonable traffic management covers (download F. Donck’s presentation in pdf).

This conference is part of a series of events on Internet, Democracy and Governance.

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13 Responses to Net neutrality: where do we stand in Europe?

  1. Maïté Hörold 23 March 2016 at 11:59 #

    This article tackles the issue of net neutrality in Europe in 2012. In order to discuss this subject in today’s context, I will start by defining and explaining the concept of net neutrality. Then I will move on to the decisions taken at EU level regarding net neutrality before concluding with my personal opinion on this matter.

    First of all, net neutrality can be defined as a “concept that all data on the internet should be treated equally by corporations, such as internet service providers, and governments, regardless of content, user, platform, application or device” (1). Indeed, Internet service providers (ISPs) should guarantee the same level of data access and speed to all traffic and no Internet traffic should be prioritized over another. Simply put, net neutrality refers to the freedom to access anything on the Internet at the same speed (2). Proponents of net neutrality state that an open and free International is fundamental to promote innovation, fair competition and freedom of speech (3). However, critics of net neutrality argue that by not having the possibility to charge more for certain levels of access, ISPs will be discouraged to invest and innovate (1).

    Having defined the concept of net neutrality, it is worth taking a look at the recent decisions taken at EU level. As demonstrated in the article, net neutrality was at the heart of debates in 2012 and it still is. Indeed, in October 2015 the first EU-wide net neutrality rules were adopted in line with the conception of a single digital market. The main idea behind these rules is that no blocking or throttling of online content, applications and services will be authorized. Furthermore, these rules will guarantee that every European will have access to the open Internet and that all Internet traffic will be treated equally. Thus, ISPs charging or blocking VoIPs for instance will be fined as such behaviour is illegal. (4)

    However, on the 27th October 2015, the European Parliament voted against a set of rules designated to safeguard the net neutrality within the EU. The European Parliament explained its decision by stating that provisions for protecting net neutrality were too vague which could ease deals between internet firms and content providers that are not necessary advantageous for everyone. (5)

    Finally, the Body of European Regulators (BEREC) is in charge of elaborating guidelines regarding net neutrality in the EU which it needs to finalise by the the end of August 2016. These guidelines will contribute to the consistent application of the regulation and will be worked out in cooperation with stakeholders and the European Commission. (6)

    To conclude, I believe that net neutrality should be promoted in order to guarantee freedom of information and freedom of speech. At worldwide level, a lot needs to be done in order to establish net neutrality. However, at EU level, regulations are on the right track even though details will have to be elaborated.

    References:
    (1) http://www.investopedia.com/terms/n/net-neutrality.asp
    (2) http://www.ibtimes.co.in/what-net-neutrality-its-importance-why-you-should-support-it-629163
    (3) http://www.theopeninter.net
    (4) https://ec.europa.eu/digital-single-market/en/eu-actions-net-neutrality
    (5) http://www.bbc.com/news/technology-34649067
    (6) http://berec.europa.eu/eng/document_register/subject_matter/berec/press_releases/5588-statement-on-berec-work-to-produce-guidelines-for-the-implementation-of-net-neutrality-provisions-of-the-tsm-regulation

  2. Mélisande Richald 23 March 2016 at 11:55 #

    This comment deals with the issue of net neutrality. I will first make a quick introduction of what net neutrality is. Then, I will try to give an overview of today’s situation before ending with my point of view on that matter.

    Before going into depth on the subject, it is important to understand correctly what net neutrality is. Although there is no agreed upon definition for net neutrality, we can explain its principle as following ; Net neutrality guarantees internet’s users the free flow of information regardless of its source or content. Therefore, it is the duty of access suppliers to preserve the right to communicate freely through providing us with open networks. In other words, as depicted in the illustration by S. Desbenoit (2012), internet providers have to guarantee free access to online information without any restriction, without monitoring the data transmitted, without modifying the visited websites or slowing down the access to any website or protocol. (1)
    Besides, with the open internet, paid prioritisation of services do not exist. In other words, providers will not be able to block or throttle traffic in return of paiement. Therefore, there will not be any commercial consideration regarding the free flow of data.

    In the context of the digital market, the European Comission wants to ensure that all its citizens have a free and equal access to digital information.
    In 2009, the European Comission declared its commitment to protecting net neutrality and received a large support of the public. (2) However, in 2012, based upon the report of the Body of European Regulators for Electronic Communications which first mission is to promote an effective internal market for electronic communications networks and services, it was observed that the objective of the European Comission was not reached at all. (3)(4) Following this, in 2013, the European Comission adopted a legislative package called “Connected Continent: Building a Telecoms Single Market” which received the approval of the European Parliament in 2015. (4) This package aims at builidng a fair, open and EU-wide digital market. Traffic management has to be « non-discriminatory, proportionate and transparent. » (5) For instance, thanks to those laws, it will no longer be possible for internet or mobile providers to block apps or services (such as Skype) with a view to making extra money by obliging the user they own service.

    As I see it, net neutrality is an important concern for small businesses. Indeed, if the internet is being neutral, it is much easier for entrepreneurs to promote their new business, make them known and sell their goods or services. In fact, we can easily observe that the Internet is nowadays a telecommunication system that can not be overlooked by companies if they want to grow. Therefore, I strongly believe that a free and open internet is an important key for innovation and drives entrepreneurship.
    Besides, I believe that the blossoming internet is the greatest technology of all days. Easily accesible, it allows us to communicate freely and express our minds. As an open platform obliges providers to treat data traffic equally, it gives enormous opportunities for marginalized communities to express themselves and to make their voice heard.

    In a nutshell, net neutrality, is an important matter that we need to protect if we want to evolve freely.

    (1) http://internetetmoi.fr/blog/la-neutralite-du-net-en-une-image/ – S.Desbenoit

    (2)http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2011:0222:FIN:EN:PDF

    (3) http://berec.europa.eu/eng/about_berec/what_is_berec/

    (4) https://ec.europa.eu/digital-single-market/en/eu-actions-net-neutrality

    (5) https://ec.europa.eu/digital-single-market/en/node/67489/#open internet

    (6) https://ec.europa.eu/digital-single-market/en/news/view-traffic-management-and-other-practices-resulting-restrictions-open-internet-europe

    (7) http://www.savetheinternet.com/net-neutrality-what-you-need-know-now

    (8) https://www.aclu.org/feature/what-net-neutrality

  3. Sacha Navez 23 March 2016 at 11:52 #

    Net neutrality is the principle that all communication transmitted through the network of Internet access service providers (hereinafter: ISPs) must be treated independently of content, application, service, device, sender address, and receiver address.
    This basic rule of the internet is threatened by other internets from internet providers for example. This subject becomes more and more controversial with the rise of actors such as Netflix. Indeed, Netflix accounts for 28% of all fixed-line Internet traffic in the U.S. which create bandwidth problem and internet congestion. 1*

    An article released on the 27th October 2015 explained that European Parliament voted in favour of ‘two-speed’ internet : “The European Parliament has voted in favour of controversial net neutrality regulations. MEPs voted down four proposed amendments that critics argued would have closed loopholes in the regulations. Critics of the unamended draft regulations had argued it would allow companies to pay for preferential treatment from ISPs and damage the free and open nature of the internet.” 2*

    On the other side, the guardian release an article named“Council of Europe gets tough on net neutrality“ on the 13rd January 2016. “The Council of Europe has approved and published strong net neutrality guidelines following a meeting in Strasbourg Wednesday. The guidelines are not legally binding but will almost certainly result in legislation that follows its lead being passed across Europe.” 3*
    “A section of the principles titled “Equal treatment of Internet traffic” makes the same point in different but equally broad language, and even places a definition on “network neutrality”:
    Internet traffic should be treated equally, without discrimination, restriction or interference irrespective of the sender, receiver, content, application, service or device.”4*

    The council of Europe took a strong stand on net neutrality which can influence the work of the European Parlement.
    Personally, I think that it is a really important topic which influences the very principle of the internet: freedom of information and a certain form of equality. That could also be a threat for small players like SME’s and would maybe end up with a globally less profit situation if we take all the actors into account. Further research would be necessary to confirm it.

    1* https://hbr.org/2014/05/understanding-the-new-battle-over-net-neutrality/
    2* http://www.wired.co.uk/news/archive/2015-10/27/net-neutrality-european-union-vote
    3*http://www.theregister.co.uk/2016/01/13/council_of_europe_net_neutrality_guidelines/
    4*ibid

  4. Van Lil Thomas 23 March 2016 at 11:47 #

    There has been a lot of discussions on the subject of net neutrality since 2012 and several elements concerning this have changed. It seems interesting to describe quickly the new elements and it is what I will do in this commentary.

    First of all, a step forward has been made in 2014. More precisely, on 3 April, a first version of the project of guidelines had been voted by the European Parliament. These guidelines on net neutrality wanted that all the traffic should be treated in the same way without any restrictions or discriminations … However, the guidelines must be approved by the European Parliament and the Council of the European Union. It is why the Council met (with the European Commission) to give its opinion on this project of guidelines. Finally, on 30 June 2015, the Council has accepted the text but changed some points of it (allowing some loopholes concerning the net neutrality). (1)

    Then, on 27 October 2015, the European Parliament has voted some amendments concerning the net neutrality. However, several amendments voted seem to be in opposition with what had been discussed in the past and preventing the net neutrality in some cases. For example, the creation of a “two-speed” internet is currently possible in the European Union. It is totally opposed to the net neutrality and all the debates on this subject in recent years. It should be noted that the European Parliament transfers all the responsibilities to the national regulations and courts concerning the net neutrality. The countries will have to decide how to implement the rules (which are not really clear). (2) (3)

    Indeed, currently it is possible to find similar offers which are forbidden in some European countries and totally legal in other countries. For example, the Netherlands are considered as much stricter than the other countries in term of net neutrality and they forbid several things that are allowed in other countries. The Netherlands forbid the “zero-rating” practice, which consist of not taking into account the consumption of data’s of some applications in the total of data consumption. Whereas in Germany, it is allowed. Recently, T-mobile created the “Binge On” service which allows the clients to use Netflix, Hulu and some other applications without any limits. While the others services using data are taking into account in the bill (or the quota) of the client. It is a kind of “zero-rating” service. In addition to this, since March 2016 T-mobile added Youtube to its service. It proves that now there are still some differences between the members of the European Union concerning net neutrality. (4) (5) (While in the USA, there are clear rules since the 12th June 2015) (6)

    Finally, one of the last element concerning the net neutrality is the fact that the BEREC (Body of European Regulators for Electronic Communications) is charged to develop European net neutrality guidelines. Especially on the subject of traffic management and commercial practices (including “zero-rating”) and others. These guidelines should be issued by 30 August 2016. (7)

    In conclusion, net neutrality is still a sensitive subject. There has been a lot of discussions and debates about it since 2012. Nevertheless, no real solutions have been found in Europe for the moment. If we look at the example of Germany and the Netherlands it is easy to show the differences between the members of the European Union. There are still work to do concerning net neutrality in Europe.

    References:

    1) http://www.lesechos.fr/27/10/2015/lesechos.fr/021434058006_neutralite-du-net—le-parlement-europeen-adopte-la-deuxieme-version-du-texte.htm#CIOKrILARGyIRoSV.99
    2) http://www.wired.co.uk/news/archive/2015-10/27/net-neutrality-european-union-vote
    3) http://webfoundation.org/2015/10/net-neutrality-fails-to-load-web-foundation-response-to-todays-eu-vote/
    4) http://www.economist.com/news/business/21677175-eus-new-internet-rules-will-hurt-continents-startups-multi-speed-europe
    5) http://www.forbes.com/sites/tonybradley/2016/03/18/t-mobile-deal-with-youtube-might-mean-the-end-of-net-neutrality/#3d1616cb6391
    6) https://www.fcc.gov/general/open-internet
    7) http://berec.europa.eu/eng/news_and_publications/whats_new/3551-berec-has-started-its-work-to-develop-european-net-neutrality-guidelines

  5. Guillaume Van Lier 23 March 2016 at 10:47 #

    First, I would like to start with a small summary of the context and the definition of net neutrality.

    In 20 years, the internet connectivity market has increased from almost zero to a multi-billion euro business. The Internet is at the heart of the world economy and has been responsible for an exceptional level of innovation.

    With the creation of a huge number of applications, the Internet has become much more than a simple telephone line. It has revolutionized the way we communicate and do business but also allowed improvements in science and technology and more generally encouraging freedom of expression and media diversity.

    More theoretically, net neutrality is the founding principle of the Internet. “It guarantees that all data packets are treated equally and that the Internet will remain diverse, innovative and free. Telecommunication companies want to change that and to establish new business models based on discrimination and restrictions. We cannot give up the economic and social value of the Internet just to help the short-term plans of a handful of companies to make more money”. As an illustration, the concept of net neutrality could be comparable to what was called the correspondence neutrality which was applied to the Post when Internet did not exist: the postman delivers mail and letters, whatever their content.

    The essence and the debate of net neutrality concern how best to preserve the openness of this platform and to ensure that it can continue to provide high-quality services to all and to allow innovation to flourish. This debate focuses strongly on traffic management and what constitutes reasonable traffic management. Some IP services (IPTV, video-conference, …) might require particular traffic management to ensure a high-quality and that’s why it’s commonly accepted that network operators need to implement several traffic management practices. For example, a consumer’s experience isn’t disturbed if an email reaches him a few seconds after it has been sent, whereas a similar delay to a voice communication would be much more embarrassing.

    Nevertheless, some operators block or damage legal services (in particular voice over IP services), which can be considered to run against the openness of the Internet and a reasonable traffic management. Abuse of traffic management must be closely monitored. Effectively, according to BEREC (ORECE in French), the majority of National Regulatory Authorities received complaints from consumers concerning the divergence between advertised and actual delivery speeds for an internet connection.

    Another important concept of the net neutrality debate is the transparency. It gives appropriate information on possible limitations and traffic management, enabling consumers to make thoughtful and informed choices.

    Blocking and throttling are two concepts that should be understood while talking about net neutrality. “Blocking can take the form of either making it difficult to access or outright restricting certain services or websites on the internet. A classic example of this would be mobile internet operators, blocking voice over internet protocol (VoIP). Throttling, which is a technique employed to manage traffic and minimize congestion, may be used to degrade (e.g. slow down) certain type of traffic and so affect the quality of content, such as video streaming provided to consumers by a competitor.”

    Already now, maximum roaming prices decrease since EU took action in 2007. And on 27th October 2015, the European Parliament has agreed to end roaming charges by June 2017 and to set net neutrality rules for the first time in EU law. It means that from June 2017, you can use your mobile when travelling in the EU and paying domestic prices without any additional costs. However, there will be some exceptions: the Regulation prevents unusual uses of roaming (called “permanent roaming”) that could have negative effects on domestic prices and therefore on consumers. To apply this, a fair use safeguard has been established and once that threshold is reached while being abroad, a small fee can be charged (but will be lower than current caps). Obviously, the primary beneficiaries will be European people who travel a lot across EU countries. But this regulation, by promoting the cross-border use of connected devices and services and boost the evolution of mobile apps, will also generate a better environment for businesses and innovation. Effectively, if Europeans use their devices more regularly when they are abroad, it will give more opportunities for online start-ups and industries to provide services to consumers.

    Concerning the net neutrality, it was a bit more problematic. On 3rd April 2014, the EU Parliament voted in favour of clear rules for the freedom and the openness of the Internet. Unfortunately for net neutrality partisans, EU Parliament representatives accepted a compromise text whose lack of clarity could be used by regulators to enable network discrimination… Effectively, on 30th June 2015, the EU institutions agreed on an incoherent and unclear text that let regulators and the European Commission (that didn’t stand for net neutrality) decide whether net neutrality will be protected or not. In that way, they could interpret the text in their own way that may lead for example to a discrimination between fast-lanes and slow-lanes and kill the best-effort Internet in the EU… But after months of negotiations, principles of net neutrality have been agreed, contributing to a single market and reversing current fragmentation:

    • “Every European must be able to have access to the open Internet and all content and service providers must be able to provide their services via a high-quality open Internet. From the entry into force of the rules, blocking and throttling the Internet will be illegal in the EU and users will be free to use their favourite apps no matter the offer they subscribe. Many mobile providers are blocking Skype, Facetime or similar apps or sometime they ask extra money for allowing these services: this will be illegal.”

    • “All traffic will be treated equally. This means, for example, that there can be no paid prioritisation of traffic in the Internet access service. At the same time, equal treatment allows reasonable day-to-day traffic management according to justified technical requirements, and which must be independent of the origin or destination of the traffic and of any commercial considerations. Common rules on net neutrality mean that internet access providers cannot pick winners or losers on the Internet, or decide which content and services are available.”

    SOURCES:

    1. http://www.touteleurope.eu/les-politiques-europeennes/numerique/synthese/la-neutralite-du-net.html
    2. http://europa.eu/rapid/press-release_IP-15-5265_en.htm
    3. https://savetheinternet.eu/en/
    4. http://europa.eu/rapid/press-release_IP-15-5927_en.htm
    5. http://blogs.skype.com/2011/06/23/a-victory-for-innovators-and-c/
    6. https://ec.europa.eu/digital-single-market/en/node/67489/#open internet
    7. http://www.wired.com/2015/06/eu-net-neutrality-loophole/
    8. http://www.bbc.com/news/technology-34649067
    9. http://www.europarl.europa.eu/news/en/news-room/20151022IPR98802/End-in-sight-for-mobile-phone-%E2%80%9Croaming%E2%80%9D-fees-and-unequal-internet-access

  6. Dirk Auer 23 March 2016 at 10:27 #

    In this post, I would like to do three things. First, I will explain why the internet has never been neutral and why the public debate on the issue is completely withdrawn from the problems that might need to be addressed. Second, I will explain where problems may lie. Third, I will outline the regulatory response of European authorities and argue that it is mostly inadequate.

    For a start, the internet has never been neutral. Content providers routinely pay vast sums to gain precious milliseconds in terms of delivery speed. The most noteworthy outlays are: the construction of data centers; the creation of private networking capabilities; and peering agreements – either directly or through internet exchanges – between autonomous systems (i.e. content providers or ISPs). [1] These expenses should be welcomed. It means that those who gain most the infrastructure that makes up the internet contribute most towards its costs. Proponents who argue that the internet has always been free – and should remain so – are thus wide off the mark. [2]

    So what is the net neutrality debate really about? It is about the “last-mile” of the internet. The last-mile is the cable laid by ISPs which connects the homes of users to the network. Building this last mile is incredibly costly. It involves laying cables up to every household, and sometimes replacing them to improve connection speeds. These costs are compounded by some potentially wasteful duplication (from my house I can connect to the networks of both VOO and Proximus, and separate cables have been laid by each provider). Economics teach us two important lessons about this last mile. First, it is close to a natural monopoly (it is only efficient to have one or few players) and, as a result, it is highly regulated in most countries. [3] Importantly for the net neutrality debate, this means that ISPs are difficult or impossible to bypass. The result is a bottleneck which content providers must pass through to access users. Second, ISPs seem to be active on two-sided markets. [4] Because users single-home [5] whereas content providers multi-home, Armstrong’s competitive bottleneck model would suggest that content providers could be made to pay monopoly prices to access users. [6] As a result, the overarching question for the net neutrality debate is an age-old monopoly problem. In practice, the question is whether ISPs would find it profitable to move away from the “best effort” principles which they have historically abided by, and whether this would reduce total welfare. [7]

    Should authorities deal with these monopoly issues through ex ante regulation rather than ex post competition laws? The Regulation adopted by the European Parliament on 27 October 2015 [8] seems to reach a somewhat awkward compromise. On the one hand, Article 4 of the Regulation imposes a number of transparency obligations on ISPs, as far as traffic management is concerned. This reduces the information asymmetries that exist between ISPs and users. It notably allows users to better attribute the source of a slow web page (i.e. whether it is due to the ISP’s traffic management practices or the content provider’s infrastructure). On the whole, this might be positive. On the other hand, Article 3 is more problematic. It provides a weak obligation for ISPs to treat all traffic equally. This is worrying. First, economists are far from unanimous on this issue, and many suggest that paid-prioritization might sometimes be welfare-enhancing. [9] This is a common finding for issues of price-discrimination. Second, as far as outright blocking is concerned, the European Competition rules on refusals to supply already provide more than adequate cover (through the so-called Essential Facilities doctrine). Third, the Regulation is far from precise. Many advocates have suggested that it leaves important loopholes for companies. This is because it does not clearly identify which content must be treated equally and what falls under its “reasonable traffic management measures” exception. This will likely lead to important litigation efforts by firms, substantial enforcement costs for authorities and, ultimately, the need to amend the Regulation. As a result of these considerations, the EU’s Regulation seems misguided. It is a poorly written piece of legislation which addresses an economic issue which (a) isn’t clear cut and (b) could be dealt with under existing competition laws in a more flexible and less costly way.

    To summarize, I believe that the public debate around net neutrality has been poorly framed. The real issue is one of substantial market power over the last mile of the internet. In that regard, the outlawing of prioritization seems misguided. This prioritization might often increase social welfare and, in cases where it doesn’t, it might be better addressed under existing competition laws.

    [1] Note that peering can sometimes be done on a non-monetary basis. I attach links to videos from a conference set up by the Scottish Government. The speakers provide overviews of the business challenges faced by players that must purchase internet connectivity: https://www.youtube.com/watch?v=ScpkICPx8Rg & https://www.youtube.com/watch?v=4EiDm3O7W9k.

    [2] For a good summary of this “the internet is free” argument, see this famous segment from John Oliver’s Last Week Tonight show: https://www.youtube.com/watch?v=fpbOEoRrHyU.

    [3] Tim Wu & Christopher Yoo, Keeping the Internet Neutral?: Tim Wu and Christopher Yoo Debate, 59 FEDERAL COMMUNICATIONS LAW JOURNAL (2007).

    [4] Nicholas Economides & Joacim Tåg, Network neutrality on the Internet: A two-sided market analysis, 24 INFORMATION ECONOMICS AND POLICY (2012).

    [5] Multi-homing could become more common with the introduction of 5G mobile connections. As things stand, though, most users cannot choose between their mobile and fixed connections to access high bandwidth content.

    [6] Mark Armstrong, Competition in two‐sided markets, 37 THE RAND JOURNAL OF ECONOMICS (2006).

    [7] ISPs could notably introduce systems of paid-prioritization, and throttle (ie artificially slow down content) or block legitimate content. The blocking of illegitimate content, such as the majority of BitTorrent’s traffic, raises different questions which I ignore here. I also ignore issues of zero-rating or prioritization of the ISP’s own content. This is a problem which is more specific to the US where the largest ISP (Comcast) is also one of the largest content providers (NBC Universal).

    [8] http://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=OJ:L:2015:310:FULL&from=EN

    [9] See notably Jay Pil Choi & Byung‐Cheol Kim, Net neutrality and investment incentives, 41 THE RAND JOURNAL OF ECONOMICS (2010). John Musacchio, Galina Schwartz & Jean Walrand, A two-sided market analysis of provider investment incentives with an application to the net-neutrality issue, 8 REVIEW OF NETWORK ECONOMICS (2009). Sébastien Broos & Axel Gautier, Competing one-way essential complements: the forgotten side of net neutrality, AVAILABLE AT SSRN (2015).

  7. Hermant 23 March 2016 at 10:27 #

    Net neutrality is the idea that all Internet content should be accessible in an equitable way. In this sense, no piece of information should be prioritized over another and no Internet Service Provider can control the Internet traffic.

    The fact is that the Internet traffic management is needed given that it allows the ISP to ensure the security of networks and to reduce the network congestion. However, there, it enters in conflict with the principle of ensuring the openness of the Internet.
    Reading this article as well as others, there is one thing that draws to my attention: the fact that such a simple notion may lead to a debate that fails finding any consensus.

    The article shows that, during the past few years, different countries in Europe tried to take part in this debate in one way or another, but not always in the same way. Yet, it seems more logical that; for something as global as the Internet, Europe at least act in a coordinate way (as it is said in the article). In this sense, in 2015, “the European Parliament voted in favour for the first EU-wide net neutrality rules” (1).

    However, this EU-wide rules does not mean that the net neutrality debate is closed. Many issues come in line with this concept of net neutrality: economic issues, social issues, etc… And thus, it is clearly not easy to conciliate everything.

    Let’s take the case of Mark Zukerberg wanting to make Facebook free on Monday in India. This so called “Free Basics” program “offers people no-fee access to a text-only mobile version of the Facebook social network, as well as to certain news, health, job and other services” (2). Well, the program has been refused by the regulators in India because it was said to be against the net neutrality principle.
    There, the Internet equality and the respect of the net neutrality seem to have won over free.(3) Even if the truly goals of Facebook may be questioned, this case shows again that everyone aren’t agree on this debate. And it also raises the question of up to which point should the equality of access be protected?

    What seems to be crucial is to clearly define precisely what traffic management allows the ISP to do. But, again, it’s not an easy thing to capture all the dimensions of the concept and that’s what make the complexity of this debate. .

    (1) https://ec.europa.eu/digital-single-market/en/eu-actions-net-neutrality
    (2) http://www.nytimes.com/2016/02/09/business/facebook-loses-a-battle-in-india-over-its-free-basics-program.html?rref=collection%2Ftimestopic%2FNet%20Neutrality
    (3) http://bits.blogs.nytimes.com/2016/02/09/daily-report-a-net-neutrality-setback-for-facebook-in-india/?rref=collection%2Ftimestopic%2FNet%20Neutrality
    (4) https://www.ocf.berkeley.edu/~raylin/tieredinternet.html
    (5) http://timesofindia.indiatimes.com/tech/tech-news/What-is-net-neutrality-and-why-it-is-important/articleshow/29083935.cms

  8. Thomas Margraff 23 March 2016 at 09:41 #

    In his speech of 3 October 2011, related in the article, Neelie Kroes talks about the importance of acting “in a coordinated way across Europe” if any act should be taken regarding net neutrality. Since 2012, the first big step has been taken in this direction. The Article 3 of the EU Regulation 2015/2120, done at Strasbourg on 25 November 2015, states the following : “End-users shall have the right to access and distribute information and content, use and provide applications and services, and use terminal equipment of their choice, irrespective of the end-user’s or provider’s location or the location, origin or destination of the information, content, application or service, via their internet access service”.

    This could be seen as a huge step towards net neutrality. However, this framework of regulation has been widely criticized and said to be way too permissive, being full of loopholes. What’s a bit more surprising according to me is what followed those critics. The European Parliament voted down the amendments aiming to close those loopholes which, according to many voices from governments and from internet companies, might cause the end of net neutrality. For example, one exception allows the internet providers to give priority to “specialized services”. While it appears clear that some extreme cases (especially for safety) might require such prioritization, the lack of precision about who those “specialized services” are, was interpreted by many as an opening for IP (internet providers) to offer a higher debit to paying sites.

    However, this framework isn’t anything more than a guideline for European countries that are still in charge of implementing those rules on their own territories and some EU members had already voted some stronger laws regarding net neutrality. This is the case for Slovenia & the Netherlands for example.

    The Netherlands is the first European country where net neutrality is actually the law, as the law discussed in the text became effective on 4 June 2012. The Dutch position hold as a reference ever since and largely inspired Brazil’s “Marco Civil” internet civil rights law. After that, Slovenia legislated in the same direction adopting a law requiring net neutrality from telecommunication operators.

    As of now, the European framework of regulation seems to have had positive impact on net neutrality. We can take the example of France that has taken actions on this matter since the EU Regulation. French deputies have adopted Article 19 of the Numerical Law which guarantees the non-discriminatory principle. Even though several amendments willing to establish a few obligations have been rejected, this is a great foundation on which France could build deeper and stronger laws for net neutrality.

    As a conclusion, I would say that it seems to me that many of these regulations, except maybe for the Dutch laws, remain very superficial. Even though most are certainly a great step towards net neutrality, they all demand further development and more rigorous definition in order to really make of net neutrality the reference in terms of web surfing. I’d say EU and the countries I just wrote about are at a crossroad. The next few months/years are going to be very telling in terms of whether or not their institutions are willing to really establish net neutrality. If no further regulation is taken, I think the loopholes are going to be exploited at will by providers and users. However, I also think that net neutrality shouldn’t be purely and simply adopted. Exceptions have to remain available for adequate situations which have to be explicitly defined. Net neutrality shouldn’t go against the law either and anybody should not be able to access whatever content on the internet thanks to net neutrality. The freedom guaranteed by net neutrality is absolutely crucial to economy, innovation, etc. but that doesn’t mean, according to me, that everybody can access websites such as torrents sites which stimulates piracy (and I take a very soft example here as we all know what can go on on the internet).

    References :
    http://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:32015R2120&rid=2
    http://www.theguardian.com/technology/2015/oct/27/eu-net-neutrality-laws-fatally-undermined-by-loopholes-critics-say
    http://www.theguardian.com/technology/2014/nov/27/european-commission-net-neutrality
    https://www.techdirt.com/articles/20140326/09012226690/brazils-marco-civil-internet-civil-rights-law-finally-passes-with-key-protections-largely-intact.shtml
    http://www.nextinpact.com/news/98185-loi-numerique-assemblee-nationale-adopte-neutralite-net.htm
    https://en.wikipedia.org/wiki/Net_neutrality

  9. Laurentine Fosséprez 23 March 2016 at 09:29 #

    There is a long-standing debate about Net Neutrality and until last year, the subject has never been introduced in the scope of EU Law. (1) Harmonized EU rules were not easy to define knowing the conflicting views on the matter.

    On the one hand, some people say that a certain level of differentiation is needed to keep network stability and quality of services, to prioritize certain traffic needs like emergency calls and to fight against piracy and virus.

    On the other hand, it’s clear that nowadays internet providers are taking advantage of their strong position. As such, some mobile providers are blocking Skype, Facetime or similar apps or are asking for money for the use of these apps. (2) Proponents of Net Neutrality are denouncing these unfair traffic management practices as well as the risk of decrease in competitiveness and innovation. They also have concerns about privacy issues and are asking for more transparency. (3)

    On 27 October 2015, The European Parliament adopted measures about telecoms who had been presented by the European Commission in September 2013 and which have led to negotiations to reach an agreement since then.
    The regulation bring principally change in roaming charges and is supposed to assure open Internet. The official objective is to “protect the right of every European to access the content of their choice, without interference or discrimination” (4) but these dispositions seem to involve lots of exceptions and loopholes. (5)&(6)
    For example, providers will be allowed to offer “specialized services” at higher speeds if it has no impact on quality of the access to Internet. They will also have plenty of flexibility to manage network congestion and could even banning entire classes of traffic.
    This legal uncertainty is disappointed expectations of many European citizens who are asking for more transparency and clarity.

    Final Net Neutrality guidelines will be issued by 30 August 2016, after that the Body of European Regulators for Electronic Communications (BEREC) would have nine months to establish clear rules and to harmonize the implementation of the regulation.
    In conclusion, although progress has been made, the BEREC has an important role to play in the future of open Internet and many people have clearly decided to make their voices heard. (7)

    (1) http://www.touteleurope.eu/actualite/la-neutralite-du-net.html
    (2) https://ec.europa.eu/digital-single-market/eu-actions-net-neutrality
    (3) https://ec.europa.eu/digital-single-market/net-neutrality-challenges
    (4) http://europa.eu/rapid/press-release_IP-15-5927_en.htm
    (5) http://www.laquadrature.net/fr/Neutralit%C3%A9-du-Net-recul-majeur-pour-Internet-libre
    (6) http://fortune.com/2015/10/27/this-is-what-the-e-u-thinks-is-net-neutrality/.
    (7) https://www.savetheinternet.eu/fr/

  10. Jérémy Gandin 22 March 2016 at 18:23 #

    Since the conference on February 27, 2012, changes have been made at the European level.
    This comment will present the current situation about net neutrality in Europe.

    In October 2015 were voted by the European Parliament the first EU-wide net neutrality rules. The point of view of the European Commission is that “Every European must have access to the open Internet. All Internet traffic will be treated equally.” (1)

    Theses rules enforces the principle of net neutrality. Thus in other words, internet providers mustn’t decide and/or influence consumer behaviour. They cannot block or regulate the online internet traffic, content, applications and services. For instance, any tariffs, application exclusion or prioritisation of internet traffic (High speed for one customer who pays more and less speed for other consumers) will be treated as illegal from now. (1)

    However, on the 27th October 2015, the members of the Parliament voted against the amendments intended for safeguarding the net neutrality law. Those amendments were all rejected by the members of the Parliament. The fact is that the text for the regulation on how internet traffic is managed in Europe only contains principles. It is too vague and doesn’t explain precisely the rules. Moreover, imprecise rules may be a problem because there will be different rules from one country to another in the EU. Eventually, it is probable that internet firms would take advantage of those inaccurate rules by making deals with content providers. If this would happen, it wouldn’t be profitable for everyone and it will be more difficult for new and small internet providers to emerge.
    The result is a regulation text without amendments. (2) (3)

    More recently, on the 28th February 2016, BEREC has started its work to develop European Net Neutrality guidelines. This will bring a consistent application of the regulation. The final Net Neutrality guidelines are planned by 30 Augustus 2016. (4)

    As anecdote, In 2011, The Netherlands was the sole country in Europe that opted a regulation by law. On 27th January 2015, not long ago, The DACM fined KPN and Vodafone for violation of net neutrality. The first one because it excluded certain applications from its free Wi-Fi hotspots. The second one was fined due to price discrimination offering “to watch pay-tv channel HBO using an app” for free. Indeed, “Regulations require internet providers not to influence consumer behaviour through blockades or tariffs.”. (5)

    In conclusion, a regulation text was voted but without the amendments because the rules were imprecise. The reason is that too vague rules may benefit internet firms and internet providers that could bypass those rules. BEREC is also currently working on accurate guidance for net neutrality regulation.

    (1) https://ec.europa.eu/digital-single-market/en/eu-actions-net-neutrality#Article
    (2) http://www.bbc.com/news/technology-34649067
    (3) http://www.rtbf.be/info/monde/detail_union-europeenne-le-principe-de-neutralite-du-net-a-du-plomb-dans-l-aile?id=9121257
    (4) http://berec.europa.eu/eng/news_and_publications/whats_new/3551-berec-has-started-its-work-to-develop-european-net-neutrality-guidelines
    (5) https://www.acm.nl/en/publications/publication/13765/Fines-imposed-on-Dutch-telecom-companies-KPN-and-Vodafone-for-violation-of-net-neutrality-regulations/

  11. Christelle Jooris 21 March 2016 at 19:42 #

    This publication exposes the situation of the net neutrality in 2012. In order to analyse the situation of today, this comment will sum up many information’s found on this subject. The first part will remain what is net neutrality and the recent decision of the European Commission about it. And the second part will expose the problems we can face if this net neutrality is not carefully respected.

    The net neutrality can be defined as the norm that guarantees that each Internet service provider (ISP) doesn’t discriminate its users communication. Each of them has to be simple information transmitter. That means that every web actors should have the same access to Internet whatever his location and the power they need. In other words, all Internet traffic should be treated equally and every data’s should circulate on the bandwidth at the same speed. (1) (2)

    The net neutrality is an actual debate everywhere; we can examine what did the European Parliament and the European Commission on this subject. Even if the net neutrality was defended in 2014 in the European Parliament, the European Commission, the European Union Council and the European Parliament surprisingly accepted, not directly, the two speeds Internet in October 2015 which disappointed the net neutrality defenders. The Parliament rejected all the amendments, which were written in order to precisely clarify the net neutrality. (3) Indeed, they voted the regulation about telecommunication and more specifically about the net neutrality but some flaws are present in it. The text is written on favour of the respect of net neutrality but it doesn’t specify the exact rules and the definition of this neutrality. (4) These flaws enchant the telecom operators and the ISP which can easily circumvent the text. In fact, they have the possibility to offer better quality services if these specialized services have no consequence on the quality of the open Internet. They can classify the different services in some categories and the ISP will regulate (accelerate or slow down) the traffic in these categories. (5) This new text lets also some ways to the companies to abuse of their dominant position. (6) Indeed, some points of the text can allow big Internet actors to negotiate with the ISP in order to be privileged on the network. If they do such negotiation, it will totally throw a spanner in the little net actor’s works. (4)

    The problem of these flaws could generate many problems on the net and the world of Internet could totally change. Although the respect of the net neutrality is one of the founder principles of Internet, it is not totally respected with the new economic models proposed by the ISP which limited the internet access to their subscribers. (1) The ISP see the end of the net neutrality as a great business opportunity. The ISP want to provide different treatments to Internet content providers according to their subscription price (7). The idea is that ISP will provide the same Internet rapidity to the net actors (platform, website,…) who pay them a certain amount. In consequence, the more powerful and rich actors will profit from the rapid Internet when the actors who cannot allow it will have slower Internet. By using a metaphor, we can imagine that the Internet content providers, who pay, can use a rapid highway and have the priority when the others who didn’t pay are blocked in the traffic jams and wait for their turn. (8) This practice is totally unfair and disadvantages the little actors. It is what we call an Internet with two speeds.

    This Internet with two speeds leads to harmful impacts. Indeed, the websites, which don’t have lot money, will disappear because accessing them will be too slow and the people will not have the patience to wait that their home page loads entirely. Moreover, the right to information will not be respected. Indeed, the information access will not be free and the dominant actors will develop the public opinion because they will be nearly the only information sources. (2) Indeed, a citizen will be oriented to particular information actors which means that they don’t have the open and free access to the plurality of the press and of the expression. (4) In addition, it will stop the people who want to launch a new business and it will erase the small business as start-up and entrepreneurs who need the equality of the Internet to grow. (9) Another problem is that big ISP provide also Internet contents and when they see free products similar to what they sell, they could have a big temptation to block it which is totally prohibited. (8) They could also do more than their transmitter role (10) and they could delete, slow down, and filter all data’s they want.

    Not only the web actors can pay to have a quickly speed on the bandwidth and to access to some Internet contents. The consumers could also pay in order to have a rapid access to Internet. (2) The consumers will pay whatever if their Internet content provider pay or not to the ISP. If the Internet content providers didn’t pay, the consumer’s debit reception will be limited and they will be obliged to pay more to the telecom operator in order to have the adapted subscription to a correct traffic. (7) In other word, they will pay more for less access which is unacceptable.

    As we noticed, this new regulation voted in the European Parliament in 2015 and implemented in each country members in 2016 (3) risks to cause many problems. On the contrary, in the USA, the net neutrality seems to be strongly protected with the regulation voted in 2015 which was supported by the president Obama. (11) Today in Europe, many defenders of the net neutrality want to change this new regulation establish by the European Parliament but will the Parliament change its texts and adopt a stronger regulation on this purpose? It is not easy to reach a consensus between the ISP which want to overrule this net neutrality and the neutrality defenders who advocate the total respect of it. We can wait for the interpretation of the law by the BEREC which is the European regulator of the electronic communications. Indeed, the BEREC will establish some interpretations about this unclear regulation text. It will allow to answer to every questions concerning the future of the net neutrality. The interpretations of the BEREC should be written in the end of August 2016. (12) The BEREC will organize a public consultation during 6 weeks before giving its final text. Then we can wait until August in order to know how the situation will evolve.

    References:
    (1) http://www.laquadrature.net/fr/neutralite_du_net
    (2) Video of “On n’est plus des pigeons”. Subject: “Neutralité du net : Internet va-t-il coûter plus cher ? “ Online: https://www.youtube.com/watch?v=mcN156dQObw
    (3) http://www.france24.com/fr/20151027-neutralite-net-paquet-numerique-parlement-europe-ue-internet-reglementation-critique
    (4) http://www.rtbf.be/info/monde/detail_union-europeenne-le-principe-de-neutralite-du-net-a-du-plomb-dans-l-aile?id=9121257
    (5) http://www.journaldugeek.com/2015/10/27/neutralite-du-net-roaming-europe-avance-a-reculons/
    (6) http://www.silicon.fr/parlement-europeen-vote-neutralite-du-net-faillible-130070.html
    (7) Video: “Qu’est ce que la neutralité du net?” Online: https://www.youtube.com/watch?v=GJmSrTVKOEw
    (8) Video “Neutralité, j’écris ton nom. Online: https://www.youtube.com/watch?v=hZnq3xg-PRM
    (9) http://www.savetheinternet.com/net-neutrality-what-you-need-know-now
    (10) http://www.gsara.tv/neutralite/?p=67
    (11) http://www.lemonde.fr/pixels/article/2015/02/26/etape-decisive-pour-la-neutralite-du-net-aux-etats-unis_4583490_4408996.html
    (12) http://www.nextinpact.com/news/98873-neutralite-net-en-europe-berec-devoile-sa-feuille-route.htm

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