Things are moving on the side of net neutrality in Europe: the European telecommunications regulator must update its guidelines on the subject. However, a concern emerges on a possible fault which could remain.
The net neutrality framework in Europe will soon evolve. Indeed, the Body of European Regulators of Electronic Communications (BEREC) is to meet from 8 to 10 June 2022 in Cyprus with a view to publishing an update of the guidelines on the open Internet. However, fears have recently emerged about a possible flaw in this new version.
Net neutrality is a considerable principle in the organization of the network. Under this regime, all traffic must be treated equally, without discrimination, limitation or interference. And this, regardless of the sender, the recipient, the content, the device, the service or the application. Clearly, there should be no favored or, conversely, hindered flows.
Since mid-March, Berec has shared its draft of its guidelines, which were available for public consultation until April 14. The purpose of this change is to reflect the judgment of 15 September 2020 of the Court of Justice of the European Union (CJEU) concerning the practice of “zero rating” or free traffic in French.
Since 2020, the question of free traffic has been decided by European courts. In practice, there are concerns about future guidelines.
Free traffic is a commercial practice consisting, for an operator, in not invoicing or not accounting for the use of certain online services while they are used by the Internet user. For example, an operator may “offer” traffic from a subscription video-on-demand (SVOD) site because it is its service or because a partnership has been entered into.
At first glance, this seems very attractive: video is one of the activities that takes the most bandwidth and consumes the most data. If it is no longer counted in a mobile plan, this allows you to save a lot of your monthly “data” to use it for something else. Except that only one partner benefits from it; all competitors then find themselves discriminated against.
This can have two consequences: first, the rivals of the SVOD platform no longer start on the same starting line because of this operator and this subscription. Then, the other operators could be pushed to do the same thing, and more, to avoid a flight of customers tempted to no longer worry about their mobile envelope.
What will happen to this “free traffic”?
The Court interpreted for the first time the regulation on the Internet opened in September 2020. And it considered that this free traffic, in any case as it was applied until now by the operators (the case concerned a Norwegian access provider, Telenor, operating in Hungary), does constitute an infringement of net neutrality.
It is therefore this decision that the guidelines must now incorporate, and it is the only modification that is planned. According to Berec, its draft reflects the Court’s ruling that free rate offerings are incompatible with the equal treatment of traffic obligation under the Open Internet Regulation.
Everything is for the best in the best of all worlds, then? Not quite. In a publication on May 30the Center for Internet and Society at Stanford Law School mentions the risk of a breach that could persist in its famous guidelines, with pressure in the telecoms sector and among some internet giants for there are loopholes.
There may be exceptions to net neutrality. That’s what recalls the French telecoms regulator, Arcep, which is a member of Berec. This includes the integrity and security of the network, its congestion, but also court decisions, those of public authorities or legislation passed in Europe or at the level of a country.
The whole issue, therefore, is to know whether among these exceptions will be this famous free traffic, which is likely to have competitive and consolidation effects for already dominant platforms. The good news, according to the Center for Internet and Society, is that Berec is on the right track. It remains to be seen whether all the blind spots will be ironed out by June.
