Council of Europe Agrees That Net neutrality is Key to Freedom of Expression

On September 29th, 2010, the Committee of Ministers at the Council of Europe (CoE) adopted a declaration on network neutrality¹Full text of the declaration: https://wcd.coe.int/ViewDoc.jsp?id=1678287. The declaration is overall a very good news for the protection of freedom of expression and communication in Europe. It is one more indication that governments are finally realizing the importance of the Internet’s core architectural principles for the future of rights and freedoms in our democracies.

The declaration first recognizes that “electronic communication networks have become basic tools for the free exchange of ideas and information. They help to ensure freedom of expression and access to information, pluralism and diversity and contribute to the enjoyment of a range of fundamental rights.”

Because the Internet has become crucial to rights and freedoms in today’s societies, the committee of Ministers stresses the importance of both network neutrality: “Users should have the greatest possible access to Internet-based content, applications and services of their choice, whether or not they are offered free of charge, using suitable devices of their choice. Such a general principle, commonly referred to as network neutrality, should apply irrespective of the infrastructure or the network used for Internet connectivity”. This last sentence means that Net neutrality must apply to both landlines and wireless networks.

The text provides some instances in which traffic management practices, whereby network operators discriminate data streams by throttling or blocking certain types of traffic, appears legitimate²The declaration says that “management may relate to quality of service, the development of new services, network stability and resilience or combating cybercrime.”. That’s where the text is a bit vague, since it does not distinguish between which traffic management practices are reasonable in the context of an Internet connection, and which should only be acceptable in the context of managed services³According to French telecoms regulator Arcep, managed services are “services providing access to content/services/applications through electronic means, marketed by the network operator which guarantees certain specific features thanks to the process it uses on the network it owns and operates. Some of the classic features include reliability rate, minimal latency, jitter (variation in time between packets), guaranteed bandwidth, security level, etc.
According to the above definition, providing end users with access to the Internet does therefore not constitute a managed service. Some managed services can be governed by a contract with an ISV [Internet Service Vendor], and may also result from an offer made available to the end user, whether as a standalone offer or in the form of an option bundled with Internet access.”
http://www.arcep.fr/uploads/tx_gspublication/consult-net-neutralite-200510-ENG.pdf. When it comes to Internet access, exceptions to network neutrality should exclude any commercially-motivated traffic discrimination, and therefore be limited to unforeseeable network congestion or security threats.

Beyond this lack of clarity on the scope of reasonable management practices, the declaration rightly goes on to state that exceptions to Net neutrality “should be considered with great circumspection and need to be justified by overriding public interests”.

Regarding the legal grounds for the protection of Net neutrality, the declaration mentions Article 10 of the European Convention on Human Rights, as well as the EU Telecoms Package’s article 8.4.g, which provides that national regulatory authorities should be “promoting the ability of end-users to access and distribute information or run applications and services of their choice”.

This might be a good start, but in a recent document⁴http://www.laquadrature.net/en/la-quadrature-answers-the-eu-questionnaire-on-net-neutrality submitted to the European Commission, we suggest that lawmakers across Europe should go further by enacting ad hoc provisions to protect Net neutrality. We take the view that all Internet access should abide by the principle of Net neutrality, and that exceptions to this principle respect an assessment framework guaranteeing that any traffic management practice actually benefits the freedom of communication of end-users that they affect. According to the CoE Council of Minister’s declaration, these traffic management practices “should be proportionate, appropriate and avoid unjustified discrimination; they should be subject to periodic review and not be maintained longer than strictly necessary”.

The adoption of this declaration is more element that should encourage the EU Commission and member States to mandate strong protection of Net neutrality.