In the beginning of May 2016, FSFE together with 72 organisations supported strong net neutrality rules in the joint letter addressed to the EU telecom regulators. The Body of European Regulators of Electronic Communication (BEREC) is currently negotiating the creation of guidelines to implement the recently adopted EU Regulation 2015/2120 on open internet access.
In the joint letter, we together with other civil society organisations urged BEREC and the national agencies to respect the Regulation’s goal to “ensure the continued functioning of the internet ecosystem as an engine of innovation”, respecting the Charter of Fundamental Rights of the EU.
However, on 7 July the European Commission endorsed and welcomed another point of view, presented by the 17 biggest EU Internet Service Providers (ISP) who oppose the idea of strong net neutrality rules. In the so-called “5G Manifesto”, the coalition of ISP states the following:
“we must highlight the danger of restrictive Net Neutrality rules, in the context of 5G technologies, business applications and beyond”
“The EU and Member States must reconcile the need for Open Internet with pragmatic rules that foster innovation. The current Net Neutrality guidelines, as put forward by BEREC, create significant uncertainties around 5G return on investment”
According to the coalition, the Net Neutrality guidelines are “too prescriptive” and as such do not meet the demand of the market and rapid developments within. The coalition is calling the Commission to “take a positive stance on innovation and stick to it”, by allowing network discrimination under the term “network slicing”.
EDRi, one of the leading campaigners for Net Neutrality and a co-signer of the aforementioned letter to BEREC, has strongly criticised the “5G Manifesto”, stating that it includes “absurd threat not to invest in profitable new technologies”.
The Commission is clearly not seeing the real implications of endorsing such policies on the innovation, especially in the digital sector. Furthermore, the Manifesto is indeed imposing threats on the EC: net neutrality vs fast connection – no middle ground. The Manifesto is arguing for “network slicing” justifying the discrimination for public safety services.
Existing rules on neutrality do allow traffic management in ‘special cases’: Article 3(3) of the EU Regulation 2015/2120 does not preclude internet access services from implementing reasonable traffic management measures that are transparent, non-discriminatory and proportionate, and based on objectively different technical quality of service requirements of specific categories of traffic. While Article 3(5) governs so-called specialised services (i.e. “other than internet access services”) that ISP are free to offer. It is difficult to see how these provisions might exclude public safety considerations if they’re “objectively” different from the technical quality perspective or need to be offered outside of open internet. At the same time it is easy to see why ISP would want to achieve that special status by trying to get this exception as broad as possible.
What BEREC is expected to do is to fill the gaps in the legislation by clarifying the implementation of the law, and to not create new rules. What the Commission is expected to do is to “stick” to its existing primary law, including the one on open internet access, and the protection of fundamental rights and freedoms. The latter includes the freedom to conduct business, but it does not include the right to maximise its profits at expense of others.
What do telcos promise in return? Telcos promise to invest into 5G. Such promise might be luring for the Commission, as the Commission calls it [“the most critical building block of the digital society”. The argument of net neutrality slowing down the internet is not a new one, and the 5G Manifesto might have hit the Commission’s tender spot. What is necessary to acknowledge, is that internet has been operating based on openness since its nascence and all the legislators need to do is to safeguard that openness in order to inter alia finally achieve the desired 5G. Internet won’t stop evolving because a part of service providers want to slice the cake according to their needs.
Net neutrality and open internet is not a new formula created by legislators in Brussels: it’s the basic, fundamental quality of internet that needs to be preserved to secure further development and future innovations. In conclusion, the EU will only need one “stick” to deliver carrots to everyone: to stick to support open internet for everyone.