The EU rules on network neutrality: key provisions, remaining concerns

05-11-2015

Network neutrality can be described essentially as a non-discrimination principle, requiring that all electronic communication passing through an internet service provider (ISP) network is treated equally. After a lengthy debate, on 27 October 2015, the European Parliament adopted the Telecoms Single Market (TSM) Regulation which includes, inter alia, new rules to safeguard open internet access in the European Union (EU). The TSM Regulation enshrines a right for end users to access and distribute content of their choice on the internet in EU law and imposes a non-discrimination obligation on ISPs to ensure all internet traffic is treated equally in a way that safeguards the end user's rights. However, ISPs can still depart from the non-discrimination principle in exceptional cases and to implement reasonable traffic management measures. The possibility for ISPs to offer innovative services, i.e. 'specialised services' such as telemedicine services (e.g. health services carried out at a distance), which usually require guaranteed service quality and traffic management has been approved. ISPs and end users also remain free to conclude commercial agreements (e.g. on prices, volume and speed) on the features of the internet access services delivered. However, safeguards have been put in place to ensure that ISPs do not circumvent the non-discrimination principle through the use of specialised services and commercial agreements. While the compromise text is seen by many commentators as a major step towards ensuring network neutrality in the EU, some remain critical of outstanding loopholes and ambiguities. Concerns have been expressed in particular on how to implement the rules on reasonable traffic management, specialised services and price discrimination practices such as zero rating. Common guidance is needed to avoid diverging approaches throughout the EU.

Network neutrality can be described essentially as a non-discrimination principle, requiring that all electronic communication passing through an internet service provider (ISP) network is treated equally. After a lengthy debate, on 27 October 2015, the European Parliament adopted the Telecoms Single Market (TSM) Regulation which includes, inter alia, new rules to safeguard open internet access in the European Union (EU). The TSM Regulation enshrines a right for end users to access and distribute content of their choice on the internet in EU law and imposes a non-discrimination obligation on ISPs to ensure all internet traffic is treated equally in a way that safeguards the end user's rights. However, ISPs can still depart from the non-discrimination principle in exceptional cases and to implement reasonable traffic management measures. The possibility for ISPs to offer innovative services, i.e. 'specialised services' such as telemedicine services (e.g. health services carried out at a distance), which usually require guaranteed service quality and traffic management has been approved. ISPs and end users also remain free to conclude commercial agreements (e.g. on prices, volume and speed) on the features of the internet access services delivered. However, safeguards have been put in place to ensure that ISPs do not circumvent the non-discrimination principle through the use of specialised services and commercial agreements. While the compromise text is seen by many commentators as a major step towards ensuring network neutrality in the EU, some remain critical of outstanding loopholes and ambiguities. Concerns have been expressed in particular on how to implement the rules on reasonable traffic management, specialised services and price discrimination practices such as zero rating. Common guidance is needed to avoid diverging approaches throughout the EU.