Europe’s new “net neutrality” regulation is full of loopholes

The European Parliament voted yesterday for a Regulation on a Single Market for Electronic Communications.

The new regulation brings a complete ban on roaming charges for using mobile phones abroad in the EU, and will force internet providers to provide users the download and upload speeds they signed up for, or if not, allows them to terminate the contract or choose to get compensated for the discrepancy.

But the part of the regulation that is heavily disputed is the one dealing with the issue of net neutrality. If you just go by the press release issued by the Parliament in the wake of the vote, you might think that the regulation looks good enough:

“The new law will oblige firms offering internet access to treat all traffic equally, i.e. not to block or slow delivery of content, applications or services from selected senders or to selected receivers, unless this is necessary to obey court orders, comply with laws, prevent network congestion or combat cyber-attacks. If such traffic management measures are needed, they will have to be ‘transparent, non-discriminatory and proportionate’ and may not last for longer than necessary. An operator will nonetheless be able to offer specialized services (such as the improved internet quality needed for certain services), but only on condition that this does not have an impact on general internet quality.”

But, as explained in a document issued by the Parliament ahead of the voting, the new legislation:

• Allows for internet access providers to offer specialised services (e.g. the improved internet quality needed for certain services such as internet TV, high-definition video conferencing or telemedicine), on condition that this does not have an impact on general internet quality.
• The net neutrality developments are dependent on availability of fast-speed broadband networks
• Some types of price discrimination, or “zero-rated services” have not been specifically banned in the text (these are services offered to customers for free, their traffic is not considered as a result of deals between the service provider and the internet access provider and thus could result in a case of discrimination. For instance, once a consumer has used their mobile internet monthly quota, the traffic that is exempted for ‘zero-rated services’ will continue, while all other traffic would be throttled or blocked.)

These are, effectively, loopholes that can be exploited by ISPs and could, and likely will, undermine net neutrality in the EU.

“By rejecting all proposed amendments to the law, the European Parliament has avoided making decisions on all crucial points,” Joe McNamee, Executive Director of European Digital Rights, pointed out.

“Now, national regulators will have to decide – on abuses imposed through ‘zero rating’, on rules on congestion management, on specialised services and so on,” he noted.

Following the vote, the Body of European Regulators (BEREC) will now be expected to to issue relevant guidelines to the national telecoms regulators.

“We will engage with BEREC and the Commission to provide clarity in the interpretation of the rules. Hopefully, the vagueness of the regulation can be fixed by BEREC’s guidelines and through diligent enforcement by national telecoms regulators,” McNamee concluded.

The amendments to the regulation were supported by many tech companies (many streaming ones, like Netflix), Sir Tim Berners-Lee, and many others, but apparently MEPs were more concerned about pushing the ban on roaming charges that net neutrality.

“The European Parliament is essentially tossing a hot potato to the Body of European Regulators, national regulators and the courts, who will have to decide how these spectacularly unclear rules will be implemented. The onus is now on these groups to heed the call of hundreds of thousands of concerned citizens and prevent a two-speed Internet,” Anne Jellema, CEO of the Web Foundation, commented the decision.

“These weak and unclear net neutrality regulations threaten innovation and free speech. Now, European start-ups may have to compete on an uneven playing field against industry titans, while small civil society groups risk having their voices overwhelmed by well-funded giants.”