Net neutrality for the EU, but what about Britain?

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THE European Union have published their long-awaited guidelines on how national regulators and telecoms providers are to manage internet traffic, coming down firmly on the side of campaigners for net neutrality.

The 45-page document written by the Body of European Regulators of Electronic Communications (BEREC) protects internet users from being treated unequally.

Specifically, it prohibits internet service providers (ISPs) and other companies from prioritising certain kinds of internet traffic while under-prioritising others.

However, even though this would generally stop ISPs from profiteering at the expense of the public's internet speeds, the guidelines do allow for exceptions for certain "specialised services."

And while such exemptions might call into question the strength of BEREC's stipulations, there are also the uncertain questions of how they'll be interpreted from nation to nation, and of whether a post-Brexit UK will or will not be included in their new framework.

Traffic management measures

As for this framework, its protection of net neutrality comes in the form of numerous requirements that national regulators are now encouraged to enforce.

The next step is that we will wait to see how national telecoms regulators employ these guidelines. But litigation is being planned by some operators
The European Telecoms Network Operators Association

For example, one key article forbids ISPs from applying "traffic management measures" except in cases where it's demanded by "technical quality of service requirements."

What this means is that ISPs can't block, slow down, alter, restrict, interfere with, degrade, or discriminate against any specific website, content, application or service. If they do engage in such practices, it can only be in cases of network congestion or declines in transmission quality.

What's more, BEREC state that any traffic management measure must be proportionate to the scale of the technical issue at hand, must treat equivalent kinds of website or app equally, and must not be conducted for commercial purposes.

Such regulations have been praised by net neutrality campaigners for their robustness. For example, Joe McNamee, the executive director of European Digital Rights, said "Europe is now a global standard-setter in the defence of the open, competitive and neutral internet."

It's not only the guidelines' protections against net non-neutrality that justifies this description, but also BEREC's requirement that ISPs remain transparent.

To this end, they now have to provide national regulators with detailed information on their traffic management procedures when asked to do so, so that bodies like Ofcom can determine whether or not any foul play has occurred.

And they must also be more transparent to the public, supplying full disclosure not only on the minimum, normal and maximum speeds customers should expect from their internet service, but on how these same customers can make complaints about violations of net neutrality.

Article 5(1)

Taken together, such conditions show how BEREC's guidelines belong to a longstanding tradition that regards the internet as an almost revolutionary democratic space in which even individuals can communicate with as many people, and on the same terms, as the biggest companies and organisations.

They've gone some way to preserving such a space, being noticeably stronger and more precise than previous BEREC drafts. However, at the same time, there are number of question marks that suggest they may not be as effective at ensuring net neutrality as they'd like.

For one, the report's interpretation of net neutrality doesn't quite conform to what might have been expected, defining it with a narrowness that could perhaps be exploited.

Specifically, its Article 5(1) states that, in order to ensure compliance with its other conditions, national regulations should set "minimum quality of service requirements" to which ISPs have to conform.

While a minimum quality would ensure that internet users never see their service fall below a basic threshold, it leaves open the possibility of other users (e.g. a big media company) being given a more than minimal quality of service.

In other words, 'net neutrality' for BEREC simply means that certain parties can be given preferential, prioritised treatment so long as it doesn't result in any other party having to suffer "sub-minimal" quality of service (whatever that means from EU member state to member state).

While this might fine for those of us who only want to check our email, it appears to undercut the idealistic principles upon which the whole project of net neutrality rests.

It would appear to risk a situation where one website, company or individual would be better able - at least in terms of offering a more satisfying user experience - to reach a larger audience than another website, company or individual.

In fact, BEREC acknowledge this possibility and explicitly provide for it in their guidelines. They allow room for what they refer to as "specialised services," which are not quite general internet-access services but more focused applications that have a very specific use.

As examples, they mention internet protocol television (e.g. video-on-demand services like Netflix), real-time health services, and "some services responding to a public interest" (however "public interest" may be interpreted).

Once again, such specialised services aren't permitted if they end up being "to the detriment of the availability and general quality" of internet access.

Still, by giving superior bandwidth to Netflix and Amazon Video, they risk giving these companies a distinct advantage over potential rivals. They allow these firms to provide a more attractive service, which in turn may unfairly divert attention away from other, 'non-specialised' parties trying to communicate to the public.

This is bad in a democratic sense, and it's also bad for economic competition, insofar as it may end up giving certain companies the edge over their rivals (e.g. Netflix over YouTube, Facebook or Twitter).

Penalties and violations

Then there's the question of actually enforcing the guidelines, which BEREC leaves to the discretion of individual national regulators.

In Article 5(1), they state that regulators "could decide" to implement a range of enforcement options, including issuing cease and desist orders and imposing fines.

Likewise, in Article 6, they write that "Member States shall lay down the rules on penalties applicable to infringements of Articles 3, 4 and 5."

This may be a perfectly democratic move on BEREC's part, yet it highlights how the guidelines won't amount to anything more than some well-intentioned words until actual nation-states put them into practice according to their particular values and policies.

As such, there's considerable scope for the recommendations to be watered down in practice, with individual nations being able to set more lax procedures and penalties that may allow ISPs to push their luck.

If this happens, then customers may possibly see their internet usage compromised more often than they'd like, with offenders being subject only to negligible punishments that allow them to continue offending without suffering serious dips in their financial performance.

Still, it's likely that the EU's much-publicised plans for a Digital Single Market will heap pressure on member states to be consistent with each other in how they put the guidelines into practice.

Then again, we've seen flagrant violation of EU law in how countries like Hungary have recently dealt with Syrian asylum seekers, so mere guidelines may not be enough on their own to deter those countries who want to give more leeway to ISPs to prioritise internet traffic.

Given that many companies have reacted to BEREC's guidelines with disappointment, there may in fact be a possibility that these companies will try to lobby individual national regulators to employ a light touch.

The European Telecoms Network Operators' Association (ETNO), for instance, have criticised the recommendations, affirming that "our concerns have not been take on board so our business and legal departments are considering options."

The association, which represents such telecoms providers as Deutsche Telekom A.G. and Vodafone, is employing a cautious wait-and-see policy though, confirming the possibility that national regulators may end up softening or even fragmenting the guidelines.

They said, "The next step is that we will wait to see how national telecoms regulators employ these guidelines. But litigation is being planned by some operators."

With such a statement, they demonstrate how BEREC's final draft, despite being much stronger than the versions which came before it, may not be so strong in the hands of individual member states.

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Added to this, there's also the matter of whether the UK - now that it's leaving the EU - will adopt them.

Since Ofcom describethemselves as a "very active member" of BEREC, and since they claim to have made "substantial input" into the body's work on net neutrality, the signs remain quite hopeful that the guidelines will be respected by a non-EU Britain.

Of course, without the weight of the EU pushing on it, the UK may feel liberated to dilute any recommendations its national regulator makes on the subject of net neutrality.

The Government, in particular, might want to loosen regulation so as to attract the investment of companies who don't like the EU's "overly prescriptive" guidelines.

Correspondingly, individual providers may feel more able to lobby and pressure Ofcom to weaken any proposals they draft.

This is why, despite the victory that BEREC's guidelines provides net-neutrality campaigners and customers alike, both groups should be wary if their celebrations happen to be taking place in the UK.

That's because, in a few years' time, net neutrality might have disappeared from Britain, and with it the dream of an open, equal internet in which the single user enjoys all the same benefits as the biggest corporation.

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