EU Parliament Still Divided on the Issue of Net Neutrality

The proposal by the European Commission on Net neutrality is currently under discussion in the European Parliament. All committees that were appointed to express an opinion on it have come to their conclusions, except for Civil liberties (LIBE) committee, whose report will be voted on 12 February.

Opinion Reports bring Potential Improvements

Since last summer, La Quadrature du Net and others have expressed doubts and concerns about the European Commission’s proposal.

In order to fill the legal void La Quadrature du Net proposed a batch of amendments in December 2013, whose main goal was to help Members of the European Parliament to:

• follow the BEREC guidelines for Quality of Service in terms of Net neutrality to clarify what specialised services should be operated within closed electronic communications networks;
• stress that a specialised service should not offer a service functionally identical to a service already available on the open Internet, as this would circumvent Net neutrality and stifle innovation in the digital economy;
• better define the nature of reasonable traffic management practice;
• assure the freedom to connect any devices to the network;
• endow regulatory authorities with legal instruments that monitor and report on Internet traffic management measures, that put in place clear procedures that address citizens’ complaints on Net neutrality infringements and that facilitate actions against Net neutrality breaches.

The outcome of this first “round of voting” open a window of opportunity. Some good improvements to the original text were proposed by the committees asked for an opinion, such as, for instance, the deletion of article 19 on Assured Quality of Services products¹The delted article reads:
“1. Any operator shall have the right to provide a European ASQ connectivity product as specified in paragraph 4.
2. Any operator shall meet any reasonable request to provide a European ASQ connectivity product as specified in paragraph 4 submitted in writing by an authorised provider of electronic communications services. Any refusal to provide a European ASQ product shall be based on objective criteria. The operator shall state the reasons for any refusal within one month from the written request. It shall be deemed to be an objective ground of refusal that the party requesting the supply of a European ASQ connectivity product is unable or unwilling to make available, whether within the Union or in third countries, a European ASQ connectivity product to the requested party on reasonable terms, if the latter so requests.
3. Where the request is refused or agreement on specific terms and conditions, including price, has not been reached within two months from the written request, either party is entitled to refer the issue to the relevant national regulatory authority pursuant to Article 20 of Directive 2002/21/EC. In such a case, Article 3(6) of this Regulation may apply.
4. The provision of a connectivity product shall be considered as the provision of a European ASQ connectivity product if it is supplied in accordance with the minimum parameters listed in Annex II and cumulatively meets the following substantive requirements:
(a) ability to be offered as a high quality product anywhere in the Union;
(b) enabling service providers to meet the needs of their end-users;
(c) cost-effectiveness, taking into account existing solutions that may be provided on the same networks;
(d) operational effectiveness, in particular in respect of limiting to the extent possible implementation obstacles and deployment costs for customers; and
(e) ensuring that the rules on protection of privacy, personal data, security and integrity of networks and transparency in accordance with Union law are respected.
5. The Commission shall be empowered to adopt delegated acts in accordance with Article 32 in order to adapt Annex II in light of market and technological developments, so as to continue to meet the substantive requirements listed in paragraph 4.”, the introduction of an enforcement mechanism or the deletion of “serious crime” as a condition for the implementation of any traffic management measure.

However, it remains to be seen whether Industry, Research and Energy (ITRE) committee will accept to take these opinions into account when its own report – set to influence the final position of the European Parliament as a whole – will be adopted on 24 February. In any case, on specialised services and the definition of Net neutrality, which are crucial aspects of any Net neutrality legislation, much remains to be done.

Key aspects of Net neutrality still missing

Last week’s vote in Internal Market (IMCO) committee demonstrates how the Net neutrality principle is still in danger. For example, the definition of specialised services therein adopted, is very far from being satisfactory²The amendment reads “’specialised service’ means an electronic communications service, optimised for specific content, applications or services, or a combination thereof, by deploying traffic management to ensure the appropriate level of network capacity and quality, provided over logically distinct capacity and relying on strict admission control, with a view to securing enhanced quality characteristics which are controlled from end-to-end and that is not marketed or used as a substitute for internet access services”: indeed the compromise reached does not clarify that the dividing line between a specialised service and an internet access service is whether or not that service is operated within a closed network or is already available over the open Internet. Furthermore the provision aimed at “deploying traffic management to ensure the appropriate level of network capacity and quality” will, if maintained, de facto become a gaping loophole in the Regulation, allowing providers to discriminate on the basis of content.

The same kind of approach on specialised services has been adopted in Legal Affairs (JURI) committee, where the amendment adopted also opens the door to anti-competitive practices³The amendment reads: “’specialised service’ means an electronic communications service or any other service that are provided using the Internet Protocol and operated within closed electronic communications networks relying on admission control that provide the capability to access specific content, applications or services, or a combination thereof, based on extensive use of traffic management in order to ensure adequate service characteristics; and that is not marketed or widely used as a substitute for internet access service”. The Members of the European Parliament have to be aware that refusing to complete the definition of specialised services would mean to definitely compromise the free choice of Internet users and their wonderful potential of creativity and innovation⁴After the adoption of the Regulation, a reflection could be launched to consider the possibility of allowing prioritization of Internet communications, as long as three main conditions are met: i) that such Quality of Service be application-agnostic (applied indiscriminately to different online services or applications); ii) that such Quality of Service be under the full control of the user so as to preserve the key architectural features of the Internet; iii) that the best-effort Internet be protected from degradation caused by the development of guaranteed QoS, for instance by ensuring a “sufficient quality of service” for the best-effort traffic delivery model (a notion already in use in some EU countries).
On propositions for such positive discrimination and its relationship to Net neutrality, see the work of prof. Barbara van Schewick: https://cyberlaw.stanford.edu/blog/2012/06/network-non-discrimination-and-quality-service.

Furthermore, JURI committee rejected the excellent amendment 61⁵The amendment reads: “End-users have the right to access and distribute information and content, run applications and use services or devices of their choice via their internet access service, in accordance with the principle of net neutrality.”, tabled by Marietje Schaake (NL – ALDE) and Cecilia Wikström (SE – ALDE), pleading for a reinforcement of the Net neutrality principle, by protecting the right of every single user to connect any hardware device to access the Internet.

Del Castillo and Rohde against everyone else?

On 24 February, the text will be voted in ITRE committee, responsible for the file; the report adopted at that time will be thereafter submitted to the whole European Parliament, during the last plenary sitting of this legislation, currently scheduled for 2 April. Unluckily, this committee’s deliberations raise several concerns.

First of all, the rapporteur, Pilar del Castillo Vera (ES – EPP), has refused, since the beginning of the decision-making process, to introduce or promote amendments guaranteeing a true protection of Net neutrality. Although she is wary of expressing clearly her opposition to a BEREC-oriented definition of specialised services, her public statements plead in favour of “an inclusive approach” supposed to guarantee the fulfillment of the potentional of an open Internet. But what does she mean exactly? Why should a stricter definition of specialised services harm any the possibility to navigate and benefit of an open Internet? Why should a greater guarantee for European citizens to benefit of their right to communicate without interferences challenge the existence of an open Internet? Why does she not have the political bravery to state that Net neutrality is not something she cares about, as it could potentially harm the interests of telecom giants? This would at least be clearer and more honest.

Secondly, Jens Rohde (DK – ALDE), shadow rapporteur for the ALDE group, did not even make the effort to table amendments on those critical questions and did nothing other than state that he shared Pilar del Castillo Vera’s positions. This passive attitude is quite deplorable, all the more so as there is a considerable number of dissenting voices within his group. Excellent amendments have been tabled in various committees by his fellow party members Sophia in ‘t Veld (NL – ALDE), Marietje Schaake, Cecilia Wikström, Nadja Hirsch (DE – ALDE), Alexander Alvaro (DE – ALDE), who genuinely defend and support the Net neutrality principle. These voices cannot go unheeded.

The Fate of Net Neutrality in the Hands of the Socio-democrats?

However, the Net neutrality fringe within the ALDE group is not alone in the European Parliament. Aside the excellent work by the Greens – headed by their shadow rapporteur Amelia Andersdotter (SE – Greens/EFA) – we also observed good suggestions from the Socialists, headed by Catherine Trautmann (FR – S&D), shadow rapporteur for her group, and Dimitrios Droutsas (GR – S&D), Vice-president of ITRE committee.

As Mrs. Herczog (HU – S&D) recently stated, speaking on behalf of Catherine Trautmann, the Socialists attach great importance to a clearer definition of specialised services. Unluckily, even if amendment 360⁶The amendment reads: “‘specialised service’ means an electronic communications service or any other service that provides the capability to access or use specific content, applications or services, or a combination thereof, in order to ensure adequate characteristics from end-to-end. A specialised service is operated within closed electronic communications networks and thus clearly separated from internet access services and is not marketed or used as a substitute for internet access service” – cosigned by Trautmann, Madurell (ES – S&D), Droutsas and Herczog – goes in the right direction, it needs to be improved in order to prevent that a service functionally identical to another available on the open Internet could be commercialised. This provision is essential to guarantee fair competition and innovation within the European single market for electronic communications and creates all guarantees necessary for a genuine implementation of the Net neutrality principle.

Mrs. Trautmann, as the person with the most authority due to her role, competence and experience on this kind of issue, is the only person able to fight against the anti-Net Neutrality and anti-competitive positions in the ITRE committee. And she can do it, all the more so as her colleague Dimitrios Droutsas, with who she signed the good but insufficient amendment 360 on the definition of specialised services, realised the importance of a further clarification on that field. As a matter of fact, in view of the adoption of the LIBE opinion, Mr. Droutsas later tabled amendment 54⁷The amendment reads: “‘specialised service’ means an electronic communications service or any other service operated within closed electronic communications networks using the Internet Protocol with strict admission control that is not marketed or used as a substitute for internet access service; and that is not functionally identical to services available over the public internet”, which includes civil society suggestions and clearly addresses the anti-competitive risk represented by specialised services. Let us hope that Droutsas‘ input, with the unconditional support of Mrs. Trautmann, can become the firm and official position of the S&D group as a whole, in order to provide a powerful counterbalance to the entrenched and unacceptable positions so far held by Pilar del Castillo Vera, and endorsed by Jens Rohde.

In the wake of the civil society organisations’ calls and the amount of amendments tabled in defense of Net Neutrality, it would be completely unacceptable if the members ofthe ITRE committee were to capitulate to the telecom lobby. The European Parliament must establish a comprehensive protection of Net Neutrality, in order to protect freedom of expression and promote innovation in the digital economy.

The next four weeks will determine the fate of Net Neutrality in Europe. Every European citizen can act and have a real influence on its evolution by getting in touch with their MEPs and calling on them to establish a comprehensive protection of the free Internet. To get on board, please visit the campaign website savetheinternet.eu.

By Miriam Artino, in charge of legal and political analysis for La Quadrature du Net