The much-awaited BEREC guidelines on the EU net neutrality regulations were released at the end of August, recommending a ban on zero rating and ad-blocking as well as a far reaching interpretation of the open Internet provisions under the regulations.
It was not so long ago that Europe introduced and embraced actual legislation on net neutrality – the concept that access to all content on the internet must be equal and unfettered.
After much debate among the various European Institutions, in April 2016, Europe adopted a net neutrality regime under Regulation 2015/2120 (the “Regulations”).
While the move to legislate for an open internet was a celebrated move amongst Internet users, the legislation left much to be desired for the diehard open Internet fans.
The regulations in their finalised form left access providers the potential to exploit loopholes to prioritise preferred traffic, resulting in a not-so-open Internet.
Finally, last week, the Body of European Regulators of Electronic Communications (“BEREC”) issued its much anticipated guidelines to help EU telecoms regulators implement and enforce the new net neutrality laws (the “Guidelines”).
The guidelines have been hailed as a triumph for advocates of open Internet, significantly tightening the loopholes in the legislation and closing the gaps for those wishing to exploit the loopholes for certain discriminatory behaviours.
The regulations that apply to “providers of internet access services” provide that:
End users shall have the right to “access” information/content and “use” applications and services irrespective of who provides them (the same principle applies to the right to supply the same).
Provider terms and conditions and practices should not restrict this open access principle.
Providers shall treat all traffic equally and shall not “block, slow down, alter, restrict, interfere with, degrade or discriminate between specific content, applications or services”.
Except, where necessary as part of reasonable, non-discriminatory and proportionate traffic management measure required to comply with a legal order, to ensure network integrity and security and to manage congestion.
BEREC has sought to bring some clarity to these restrictions, being the cornerstone of the EU’s policy on the open internet.
Firstly, it has sought to close down a potential technical loophole by clarifying that the regulations apply to all providers of Internet access and providers cannot escape them by providing only limited access to some content or applications (and indeed such providers would breach the regulations by providing such limited access).
More importantly, the guidelines have addressed some potential commercial practices which are evolving amongst some providers; ad-blocking and ‘zero-rating’.
Ad-blocking technologies are increasingly used by users and there are some operators (such as Three) who are
reported to be launching ad-blocking services, potentially putting them at odds with much of the digital business community reliant on the commercial benefits of mobile advertising.
BEREC has made clear its view that any attempts by operators to implement ad blocking at a network level would be banned under the regulations unless such measures fall within the limited exemptions for legitimate traffic management purposes.
Given the limited scope of these exemptions and the requirement of proportionality, it is difficult to see how blanket advertising blocking measures implemented by default at a network level would not fall foul of the regulations.
However, much will depend on the basis on which the blocking is implemented.
The regulations do not apply to user preferences implemented through their devices and BEREC considers that network measures aligned with such user preferences would be permitted.
Any ‘opt-in/opt-out’ approach taken by providers in implementing blocking measures will inevitably be closely scrutinised.
The guidelines also seek to crack down on the practice of ‘zero-rating’ of specific content such that it is treated more favourably to other content.
Zero-rating of content is not automatically unlawful and, again, it depends on how it is implemented.
BEREC cites an example where a provider ‘zero-rates’ traffic for its own music app, so that usage of the app does not count against the data cap.
It has confirmed its view that zero pricing in the above scenario would invariably create an incentive for the end user to use its own application in respect of which zero rating applied, rather than use any competing applications.
This would defeat the very notion that all content should be treated equally on the Internet, creating an inherent bias for the user in favour of certain other content.
Notwithstanding the above blanket prohibition, BEREC has admitted that certain cases may be “less clear cut” and national regulators will have to assess, case-by-case, certain practices by ISPs.
In any such assessments, the guidelines urge the regulators to consider the market share of the ISP, effects of the practices on the end user choice and the scale of the relevant practice.
Further, the guidelines have also shed some light on the vaguely worded and much debated exemption from the non-discrimination principles through the right of communications providers to provide ‘specialised services’ with a bespoke QoS required for specific content, application or services.
Under the regulations, providers may only offer such services if doing so does not undermine the availability or general quality of the networks otherwise used to provide internet services.
Furthermore, a ‘specialised service’ cannot be offered as a substitute for an Internet access service.
BEREC has provided national regulators some guidance on how it could measure the effects of a specialised service on Internet access services, such as lower download/upload speeds, increased delay, delay variation or packet loss.
BEREC places great emphasis in the requirement that specialised services cannot operate as a substitute for an internet access service, stating that if it offers access to the Internet, albeit on a more limited basis, with a higher quality, this would amount to a breach of the Regulations.
The guidelines have been applauded by many as setting world-class standards in defence of an open and neutral internet.
Of course, the guidelines are not binding on regulators; it will be interesting to see how each national regulator observes and implements the guidelines.
There is also the possibility that, following Brexit, the UK government may be persuaded to adopt a softer touch approach to regulating net neutrality in return to greater commitments from operators for network investment.
Sourced by Angus Finnegan, partner, and Korolyn Rouhani-Arani, senior associate at Taylor Wessing LLP