EU’s guidelines on net neutrality see the light although grey areas do remain

Participation of Günther Oettinger, Member of the EC, in the round table on ‘5G manifesto for timely deployment of 5G in Europe’. © European Union , 2016 / Source: EC – Audiovisual Service / Photo: Lieven Creemers.

Last week will not only be remembered for the world-record fine imposed to Apple by the European Union and the Hutchison-VimpelCom merger in Italy. There was also space for some important news on net neutrality.

The Body of European Regulators for Electronic Communications (BEREC), which is the regulating agency of the telecommunication market in the EU, published last week guidelines on how the EU will implement net neutrality rules that were adopted last year. The document, which clarifies how internet service providers should treat the data they handle in the EU, represents the final stage in the three-year process of adopting net neutrality legislation in the bloc.

Net Neutrality principle

Net neutrality is the principle that all data should be treated equally, and that Internet service providers (ISPs) should enable access to all content without blocking or slowing down specific websites on purpose, regardless of the source. In a few words, net neutrality’s mission should be preventing broadband operators from favoring specific sources of content such as commercial partners.

BEREC only admitted a small range of exceptions, which refer to “specialised services” that are optimised for specific content, such as high-quality voice calling on mobile networks, real-time health services (such as video feeds for use in remote surgery) and live broadcasts over internet TV services. “Regulators would have to check that giving preference to such services would not degrade others”, BEREC specified in its statement.

Background

The new net neutrality rules were adopted in the EU last year and took effect in April this year, and after then BEREC launched a six-week public consultation on the draft Guidelines, closing on 18 July. “The number of 481,547 contributions received before the deadline was unprecedented for a BEREC consultation, and coming from diverse categories of respondents: civil society, public institutions and independent experts, ISPs, content and application providers and other industry stakeholders”, as it was declared by BEREC in its official statement. The Guidelines finally saw the light last week, and were published together with an accompanying consultation report, summarising stakeholders’ views submitted and how BEREC took them into account.

The net welcomes the news

The publication has been welcomed by digital rights experts, and digital rights groups are describing the document as a victory for the free and open internet. “Europe is now a global standard-setter in the defence of the open, competitive and neutral internet. We congratulate BEREC on its diligent work, its expertise and its refusal to bend to the unreasonable pressure placed on it by the big telecoms lobby,” said Joe McNamee, executive director of the European Digital Rights (EDRi) in a statement, as reported by the BBC and other prominent news outlets last week.

Commissioner Günther Oettinger, in charge of Digital Economy and Society, called BEREC’s Guidelines as “a reference for every national regulator having to decide whether a company or a public service provider violates the net neutrality rules and whether to start proceedings against them”. “Ensuring an open Internet is a fundamental principle to promote and protect the Internet that we want”, he said. “Today, we made a further step in the right direction”, he added.

Loopholes risk

Something many experts were afraid of was that the regulations that were first adopted last year contained several holes, or “loopholes”, including a provision that would have allowed providers to offer an internet fast lane to paying sites. Some campaigners and groups indeed claimed that the 2015 document also contained allowances for ISPs to predict “periods of peak demand” and so introduced some traffic management measures that would have eventually led to lowering the effects of net neutrality. The European consumer organisation BEUC too warned that the exceptions would have undermined the overall achievement at those times.

Grey areas

It seems that now, under the Guidelines, telecom firms will only be allowed to slow down internet traffic to fix bad quality, and not towards any kind of commercial return. However, the new regulations received also several critics and there are many people that are convinced that the Guidelines still leaves many questions untouched. Many have indeed raised the point that Internet service providers that restrict online access to pornography or adult content could be breaking the new EU guidelines on net neutrality. The issue is particularly serious in the UK, as described by the Guardian, where companies such as ISPs Sky, BT and TalkTalk already block access to adult sites following pressure from the government, as do mobile operators such as O2.

Ad blocking at risk

And if blocking porn falls into a grey area ad blocking may be at risk too, as the clause contained in BEREC’s “net neutrality” guidelines indeed states that telecoms companies “should not block, slow down, alter, restrict, interfere with, degrade or discriminate advertising when providing an IAS (internet access service)”. This way all software that blocks adverts from appearing on smartphones may find themselves breaking the law.

No regulation at network level

The Guidelines by BEREC actually state that while consumers should be allowed to install “ad blocking” apps on their phones, network-level blocking should be prohibited. A guidance document, contained in a report issued alongside last week’s updated guidelines reads: “BEREC notes that the regulation does not consider that end-user consent enables ISPs to engage in such practices at the network level”. “End-users may independently choose to apply equivalent features, for example via their terminal equipment or more generally on the applications running at the terminal equipment, but BEREC considers that management of such features at the network level would not be consistent with the regulation”, the guidance adds.

The Guardian last week reported that Frode Sorensen, co-chair of the BEREC Expert Working Group on net neutrality refused to comment on specific cases or countries, but said the updated guidance made it clear that it had found no legal basis for using customer choice to “justify blocking any content without national legislation” or for reasons of “traffic management or security”.

End-user blocking

And if there were any doubts on how popular end-user ad blocking already is in the world, a report published earlier this year by PageFair will help get the bigger picture. The report shows that a least 419 million people (22% of the world’s 1.9bn smartphone users) are blocking ads on the mobile web. In Europe and North America, as of March 2016, there were 14 million monthly active users of mobile adblocking browsers.

The report also shows that, as of March 2016 an estimated 408 million people are actively using mobile adblocking browsers, like for instance a mobile browser that blocks ads by default. These figures are the clear indicators of how adblocking will likely become the most hotly discussed topic in the digital media industry, and surely the new Guidelines on net neutrality rules in the EU will inescapably be the hottest point of discussion.