Net neutrality has become one of the most salient topic almost instantly by the end of the year 2017. The main reason for this increase in public opinions’ interest in the matter comes from the fact that the United States under Donald Trump’s presidency, sought to put an end to net neutrality in the country. Reactions from across the globe were vivid, and more especially in Europe, where this decision has been condemned by both national and supranational authorities. Indeed, this initiative seemed very unusual coming from a country which had always been a major proponent of net neutrality these past years, to embrace such a shift in its stances toward this issue.
In the case of the European Union, there has been some ups and downs when it comes to net neutrality. In fact, the Union has in the past been credited of undermining the equality of all regarding the internet, which for advocates of net neutrality should be a citizen’s given right, alongside water or electricity for instance. However, since 2015, a lot has been achieved in terms of legislations voted at the European Parliament for guaranteeing net neutrality for all European citizens.
For a fuller and better understanding of the issues at stake in the case of net neutrality, it will be required to comprehend why it matters so much in the first place, and also why the American case is starting to shake things up for everyone in this particular domain.
What is net neutrality and why does it matter so much?
Net neutrality represents something about the Internet that almost everyone using it assumed was normal, or simply how the Internet worked. It embodies the idea that all data that are being used by Internet users should be treated equally, meaning that there should not be any discrimination between services provided online. In other words, under net neutrality rules, Internet providers cannot favour a certain kind of data over another; the flow of data should be the same, no matter what the user wants to access. That is at the very core of what net neutrality is. Therefore, when you are a regular user of any online service such as Facebook, Amazon or Netflix, it seems rather obvious why the neutrality of the Internet matters so much: it is what keeps Internet providers from charging people to allow them to surf on certain websites only rather than others, creating discrimination among websites providing similar data.
Net neutrality protects both Internet users and websites, as it restrains Internet providers from charging users for using only a handful of websites, or to force websites to pay a fee if they want the data they send to their users to be more fluid. That is why the decision which has been taken by the Trump administration – and more specifically by the Federal Communications Commission (FCC) and its chairman, Ajit Pai – is so important for US citizens, as well as the rest of the globe more generally. By ending net neutrality in their country, the US government is indeed threatening this concept elsewhere, as it has also been adopted as a benchmark abroad.
Briefly stated, the decision which has been taken by mid-December by the FCC sought to end what the Obama administration had strived to do until then, that is to say incrementally going towards more rules to better frame and protect net neutrality in the US. Now that the decision has been taken to repeal these rules, high-speed Internet service providers (ISPs) will be able to either charge a company to deliver its content quicker, or to create bundles enabling users to get certain data more rapidly than others. That could generate disparities between companies which will be able to afford paying expensive fees to get a better flow of data on the Internet, and between individuals who sometimes will not be able to pay for all the services they want to access.
This decision will have huge impacts everywhere, however in the case of the European Union, some ground rules have already been voted a few years ago in order to secure net neutrality in the EU’s 28 bloc.
What is currently happening in the EU? Are net neutrality rules in effect?
In Europe, there has actually been a similar debate happening considering net neutrality within the Union. Indeed, in 2015, there were some concerns that the European authorities were trying to water down net neutrality. These concerns have most notably been the result of the European Parliament choosing not to vote for a set of amendments which were supposed to enhance protection of the neutrality of the Internet in the bloc. The amendments to an existing European regulation were supposedly going to better frame and specify even more how to safeguard net neutrality. The regulation which was adopted in 2014 had in fact been criticized for its lack of preciseness on an issue such as this one, especially because there were a few loopholes within it, and because it let a lot of room to interpretation for internet providers.
Still, the original purpose of the 2014 regulation was to safeguard net neutrality in the European Union and by now it should have been adopted by all national parliaments of the EU Member States. As the European Commission puts it on its Open Internet webpage for explaining net neutrality to EU citizens:
“The rules enshrine the principle of net neutrality into EU law: no blocking or throttling or discrimination of online content, applications and services. Every European must be able to have access to the open internet and all content and service providers must be able to provide their services via a high-quality open internet. Under these rules, blocking, throttling and discrimination of internet traffic by Internet Service Providers (ISPs) is not allowed in the EU, save for three exhaustive exceptions (compliance with legal obligations; integrity of the network; congestion management in exceptional and temporary situations) and users are free to use their favourite apps and services no matter the offer they subscribe to.”
In other words, what this regulation ensures is that all data flows have to be treated equally: “This means, for example, that there can be no prioritisation of traffic in the internet access service” the European Commission clarifies. “Common rules on net neutrality mean that internet access providers cannot pick winners or losers on the internet, or decide which content and services are available” it adds. With this regulation, the European Union has therefore strived to carve net neutrality into EU laws and into national rules. Moreover, it guarantees that each Member State has to monitor and make effective the compliance of its private entities to the provisions comprehended in the regulation.
Nevertheless, the main provisions are sometimes too broad and allows some interpretation, as it has been mentioned before. For instance, in a few European countries, already some Internet providers and mobile carriers have been able to take advantage of a loophole in the regulation which enables a practice called zero rating. Thanks to this procedure, it is possible for these companies to not charge for data used on certain applications or services – thing which is supposed to be forbidden in the case of an operating net neutrality. This again creates discrimination among several Internet companies which provide similar services.
Several cases have been spotted throughout the European Union, in countries such as Portugal with the mobile carrier MEO, Germany with Deutsche Telekom or Sweden with Telia. The purpose of the amendments to the current 2015 regulation was therefore to fill in the gaps in the latter, but which failed to be adopted in the Parliament. That is why the European Union had sometimes been seen as a detractor to net neutrality. However, it seems rather obvious that net neutrality is overall being protected in the EU, while in the case of the United States, it has been almost eradicated.
What does the US case mean for the future of net neutrality in Europe?
With the Federal Communications Commission’s wish to water down net neutrality in the US, there is a real threat to net neutrality in the European Union. Indeed, in the case of digital services and the Internet in general, the US has usually been regarded as a global leader, especially in the case of regulations to protect the Internet and ensure its equal use by everyone. Maryant Fernández Pérez, a senior policy adviser at European Digital Rights – an association of civil and human rights organizations advocating an open digital environment – indicated that “The U.S. set good standards for the globe, but now they could go backward”. With the decision taken by Mr. Pai and the FCC, “The consequences are not very good internationally” he adds.
Even though net neutrality has been enshrined in EU regulations, it does not mean the European Union will not follow what the United States has done considering this matter. But the fact that the EU and European and national authorities have condemned this move from its their US counterpart seems reassuring. Finally, there is also a chance that the American authorities and especially the FCC might want to back-pedal on this decision if they witness Internet providers benefitting too much from it. It might not happen under the current presidency, but it could still happen later on.
For further information:
European Commission: https://ec.europa.eu/digital-single-market/en/policies/open-internet-net-neutrality
European Parliament Research Service: http://www.europarl.europa.eu/RegData/bibliotheque/briefing/2014/140773/LDM_BRI%282014%29140773_REV2_EN.pdf