Should an internet service provider (ISP) be allowed to
block, prioritise or degrade network traffic?
This issue, otherwise known as network neutrality, is a
fundamental to the establishment of a competitive European market
in telecommunications. Such a market is the aim the EU Telecoms
Package, which contains the new rules for the telecoms industry. It
is currently being discussed in Brussels. Once in place, the new
rules will define the continental telecoms market for the next few
years.
The review aimed to deal with uncompetitive practices in some
European countries and to open up market access for new network
operators. This would make it easier for BT, for example, to set up
a competing service to Deutsche Telekom in Germany.
However, the insertion of provisions to support internet
restrictions as part of copyright anti-piracy measures has proved
controversial.
As it stands, the package will allow network operators to
restrict access to certain internet services and applications. It
will support "three strikes" measures for copyright enforcement
against peer-to-peer (P2P) users. Its sharpest critics say that it
will limit competition and create a fragmented market for internet
services across Europe.
The Telecoms Package text says that restrictions on access to
internet services and applications are "neither mandated nor
prohibited". The legal meaning of this phrase is unclear. Some say
it means that ISPs are permitted to restrict traffic flows; others
say it means there is nothing to stop them.
Either way, the effect is that network operators and/or ISPs
will be licensed to interfere with internet traffic on their
systems. They will have the right to block, slow or degrade
specific services, or any other services that do not suit them,
provided they note it in the users' contract.
The law would appear to allow them to prioritise services too,
or least, it would not prevent them from doing so. This means they
could segment the market by providing different network speeds for
different prices, or slowing iPlayer downloads by giving preference
to voice traffic or Google searches service, or even how many
people can share the network simultaneously.
The rules have been discussed in the context of home users.
However, under EU law the "user" is defined as a business or a
consumer. Business users who use voice over IP or peer-to-peer
services will be affected, although the full implications are not
yet clear.
The most immediate candidate for blocking is Skype, which is
already blocked by T-Mobile in Germany and slowed down by
others.
Malte Behrmann of the European Games Developer Federation (EGDF)
says that online computer gaming services could also be hit. "We
are affected by the Telecoms Package," he said. "What happens when
they misuse filtering technology in order to prioritise their own
content?"
The EU is positioning the remedies as part of its "transparency"
rule; operators must tell users precisely what services and
applications they block. But Brussels telecoms lobbyist Caroline de
Cock says transparency in the Package is a one-way
communication.
She says users will be told what is being blocked, but the
proposed law does not establish a reciprocal right to complain
against unfair blocks, nor does it create a way for regulators such
as Ofcom to monitor the operators and act against those who block
unfairly.
The Package raises the network neutrality debate at a political
level for the first time in Europe. According to the French
internet activist organisation La Quadrature du Net, the Telecoms
Package challenges the principle of net neutrality.
La Quadrature has called for the removal of the provisions that
relate to restrictions, and for the principle of net neutrality to
be enshrined in EU law. This would bring Europe into line with
moves at the Federal Communications Commission, the US telecoms
regulator, to preserve net neutrality, and in passing to enhance
users' online privacy.
The alternative could be a patchwork of networks and a myriad of
different rules across the 27 EU countries, which will raise costs
and hinder economic development.
Copyright
The sticking point for the Telecoms Package is copyright.
Strictly speaking, copyright does not belong in telecoms law. It
got there because of attempts by content industry lobbyists to
create a legal basis in European law for the French government's
"three strikes" measures. A counter-amendment by the French MEP Guy
Bono, who was concerned about users' rights to freedom of
expression, is the reason why the Package was held up.
"Three strikes" or "notice and take down" entails a series of
warnings sent to users by their ISP, followed by suspension of
their internet. In France, it will be a complete suspension of
their internet account. In the UK "technical measures" are
proposed, meaning users could be temporarily suspended, throttled,
or blocked.
Under current EU law (the E-Commerce Directive) ISPs are not
liable for the content they transmit. They are "mere conduits".
According to Innocenzo Genna, of EuroISPA, if they take any action
in respect of the content they carry, for example, to enforce
copyright, they would be breaking the law.
The Telecoms Package provides a legal workaround for the
E-Commerce Directive. It cannot mandate ISPs to filter or police
their networks. Instead, national regulators such as Ofcom will be
able to ask ISPs to "co-operate" with rights-holders on copyright
enforcement. ISPs will have to ensure that their contracts include
information on any service restrictions. This means they could use
the contract to suspend service access or impose any other
restriction for copyright enforcement purposes. The relevant
clauses in the Package are Articles 33.3, 20.1b, and 21.3 in the
Universal Services.
The Telecoms Package is symptomatic of a more general trend to
get ISPs to police copyright infringers. The Belgian ISP Scarlet is
being sued by the music royalties collecting society Sabam, and has
been fighting a court order to filter Sabam's content on
peer-to-peer networks. In Ireland, Eircom was taken to court by the
Irish music industry, and reached a private, out-of-court
settlement to apply "three strikes" measures.
The counter-amendment in the Telecoms Package is known as
Amendment 138. The text means that sanctions against internet users
may not be made without a court order. Some think it also means
that access to services may not be blocked without a court
ruling.
The principle it enshrines is to guarantee rights of access to
content and services on the internet, says Andriani Ferti, a lawyer
with Clifford Chance. "Conditional access to the internet should
not be imposed on European citizens," she says, adding that the
Article also protects the freedom to conduct business.
National governments are blocking Amendment 138. They want to
force through the Telecoms Package without it. If they get their
way, the barriers to "three strikes" and other copyright
enforcement measures will be lowered, and net neutrality
irretrievably compromised for the foreseeable future.
Who has a political interest in the Package?
Why would an amendment that protects users rights of access to
internet services cause such controversy?
Amendment 138 has acquired political weight well beyond its
plain text. It has prevented the European Commission from drawing
up EU-wide proposals for "three strikes" or "notice and take-down".
It has delayed the French government's law and could put bar
certain aspects of the British government's plans to police the
net, which could explain why the British and French governments are
leading the charge against it.
However, it is not just government. Effectively, the Telecoms
Package brings together two industry agendas which collide over
copyright. The content industry or publishing sector seeks to
prevent all downloading of copyrighted content without the
rights-owners' express permission. The telecoms industry wants to
be able to charge users for priority delivery of content.
The content industry agenda was driven by music and film
industry bodies such as the IFPI and the Motion Picture
Association. In 2006 IFPI wrote in response to a European
Commission consultation, "If ISPs continue to be unwilling to
improve their cooperation, this could require a revision of current
legislation such as the E-commerce directive or the Telecoms
Package..."
The telecoms agenda is spearheaded by ETNO, the large telecoms
operators' club. ETNO has sided with US telecoms multi-national
AT&T, which put forward amendments to the European Parliament
to restrict users' access under certain conditions. In a lobbying
document, AT&T argued that "mandating non-discriminatory
treatment of network traffic in the directives would reduce
innovation and ultimately consumer choice." AT&T's wording is
remarkably close to the final text in the Telecoms Package.
The telcos argue that if they are to invest in new
infrastructure, they should be able to do what they like with their
networks. Ilsa Godlovitch, director of regulatory affairs at the
European Competitive Telecommunications Association (ECTA) refutes
this argument. She argues that it is better for overall economic
growth to address the problems that prevent new competitors from
entering the market. "If you address the infrastructure
bottlenecks, the content will take care of itself," she says.
In Brussels, the pundits admit that the Telecoms Package is
unlikely to meets its original goal of opening up competition. Joe
McNamee, lobbyist for European Digital Rights (EDRi), says that it
enables the operators and regulators "to extend the excuses
available to limit competition", and that it does not address,
still less remove, barriers to entry for new entrants.
There are very powerful industrial interests pushing for the
Telecoms Package to go through. Amendment 138 is the only thing
stopping it and creating breathing space for a wider policy
debate.
Unless the European Parliament stands firm and endorses
Amendment 138, Europe risks a return to the days of national
networks run by dominant or monopoly operators, with fragmented
service offerings.
The full text of Amendment 138
The national regulatory authorities shall promote the
interests of the citizens of the European Union by inter
alia
(h) applying the principle that no restriction may be imposed on
the fundamental rights and freedoms of end-users, without a prior
ruling by the judicial authorities, notably in accordance with
Article 11 of the Charter of Fundamental Rights of the European
Union on freedom of expression and information, save when public
security is threatened
Further reading
La
Quadrature du Net's dossier on net neutrality >>
The Harbour report on universal services directive, personal data
and the protection of privacy >>
The Trautmann report on framework, access and authorisation
directives >>