INTERNET LAW - How the European Union is Addressing the Issue of Net Neutrality?

Net neutrality is a significant issue for both governments and Internet users. Governments are to protect the free and impartial flow of information on the Internet, and users should be able to decide the applications, services and information they want to access.  In the United States (U.S.) and the European Union (E.U.) the net neutrality debate is still ongoing. Should Internet Service Providers (ISP) be allowed to limit, filter, or block Internet access? Should ISP be allowed to affect the Internet performance? This article informs about the latest position on net neutrality assumed by the European Data Protection Supervisor (EDPS).

Net neutrality not only relates to the free and impartial flow of information on the Internet, but also to the traffic management and protection of privacy.  In the U.S., the net neutrality debate has concentrated on the possible monopoly or control of the information by some groups. This is, some ISPs owned by the major media groups would decide what Americans access or not access on the Internet. In the U.S., this debate is not over yet.  Likewise, the E.U. is still analyzing the issue of net neutrality. On February 8, 2012, the EDPS published an opinion on the issue of net neutrality (hereafter The Opinion), traffic management, and the protection of privacy and personal data.  

The Opinion recognizes that filtering, blocking and inspecting network traffic raises important questions regarding confidentiality, privacy, and the use of personal data when accessing the Internet.  The Opinion states that certain inspection techniques involve the monitoring of communications, websites the user visits, email sent and received, and time when these activities take place, etc., which are actions that may violate people’s fundamental right of confidentiality of communications.  Confidentiality of communications is a fundamental right according to Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (the ECHR), and Articles 7 and 8 of the Charter of Fundamental Rights of the European Union (the Charter).  Thus, it is clear that the E.U. position when addressing the issue of net neutrality focus more on the fundamental right and freedom of communication. 

Regarding current legislation addressing the issue of net neutrality in the E.U., the Opinion states that before 2009, the E.U. legislation did not prohibit ISPs from filtering or blocking certain Internet services.  In 2009, the E.U. Telecom Package introduced provisions that favored the openness of the Internet.  Article 8(4) of a Common Regulatory Framework for Electronic Communications Network and Services (Framework Directive) mandated that regulatory authorities promote the ability of end-users to access content, applications, and services of their choice. Also, the Universal Service Directive, Articles 20 and 21 contain concrete obligations regarding Internet access and limitations.  Lastly, Article 22(3) of the Universal Service Directive empowers national authorities “to impose minimum quality service requirements on ISPs to prevent degradation of services and the hindering or slowing down of traffic over public networks.” According to this legislation, the Opinion states, the E.U. supports an open Internet. However, the Opinion also states that ISPs may engage in traffic management provided that the end-users are fully informed and are allowed to express their consent to traffic management.  The Opinion also states that Member States are entitled to have different rules regarding ISPs traffic management policies.

The Opinion concludes that (1) ISPs reliance on monitoring and inspection techniques may impinge upon the neutrality of the Internet and the confidentiality of communications. This raises serious issues about protection of privacy and personal data; (2) the EDPS acknowledges that more should be done to implement net neutrality policies; (3) the EDPS considers that national authorities should monitor the market situation to determine whether there is a real-time inspection of communications and whether the legal framework is followed; and (4) additional legislative measures may be necessary to assure legal certainty.  

It is clear from the EDPS’ Opinion that the E.U. favors net neutrality.  The reason behind this position is the protection of the human and fundamental right of confidentiality of communications. Contrary to the E.U., the U.S. seems more ambivalent about its position on net neutrality. In the U.S., the government’s position is still indecisive.

Martha L. Arias, Attorney at Law; IBLS Editor

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