Europe’s Digital Single Market is an ambitious project. Launched in May 2015, it aims to make reforms across innovative industries from e-commerce to broadcasting. With Tuesday’s vote on the net neutrality and roaming charges regulation, the EU has taken a firm step towards fulfilment of those objectives. The new law is planned to take effect from 30 April 2016. But many in the industry feel that an opportunity has been missed to make access to the internet truly fair, and loopholes in the law as passed will allow large players to dominate.
The vote marked the culmination of years of painstaking negotiations. In its press release, the EU Commission put greater emphasis on the ending of mobile roaming charges.
From April 2016, EU mobile operators will only be able to charge a small additional amount over domestic prices, and from 15 June 2017 roaming charges will no longer be allowed at all, for calls up to a fair use limit. Banning the much higher charges imposed on mobile users when travelling within the EU but outside their home nation is a sure fire win with consumers (if not the telecoms industry).
The second element of the new law, net neutrality, is less eye-catching to consumers but equally important. It aims to put an end to practices such as
throttling - where ISPs limit the access of a high-data user (using peer-to-peer file sharing, for example) to minimise the impact on other network users.
blocking - where ISPs block certain sites or services from being accessed by consumers. This could include blocks on VoIP services where these might compete with the ISP’s own offer.
While most would agree that the principle is a good one, enabling new market entrants and smaller businesses to access customers in the same way as their larger rivals, commentators fear that there are problems with the legislation that have been swept under the carpet.
Loopholes in the law?
There was an unsuccessful attempt before the vote to amend the text to remove what many in the industry felt were ‘loopholes’ in the net neutrality rules. Article 3 of the new law sets out the principle that
"Providers of internet access services shall treat all traffic equally, when providing internet access services, without discrimination, restriction or interference, and irrespective of the sender and receiver, the content accessed or distributed, the applications or services used or provided, or the terminal equipment used."
But this is followed by carve-outs such as
"Providers of electronic communications to the public, including providers of internet access services, and providers of content, applications and services shall be free to offer services other than internet access services which are optimised for specific content, applications or services, or a combination thereof, where the optimisation is necessary in order to meet requirements of the content, applications or services for a specific level of quality."
Internet originator Sir Tim Berners-Lee commented before the vote that:
- The current proposal allows ISPs to create fast lanes for companies that pay to have their content load faster by calling them “specialized services”. ...
- The current proposal permits ISPs to exempt applications from users’ monthly bandwidth cap (“zero-rating”). ...
- The proposal allows ISPs to define classes of services, and speed up or slow down traffic in those classes, even in the absence of congestion. ...
- The proposal allows ISPs to prevent “impending” congestion. That means that ISPs can slow down traffic anytime, arguing that congestion was just about to happen. ...
And after the vote, Web Foundation CEO, Anne Jellema, expressed disappointment, saying: “These weak and unclear net neutrality regulations threaten innovation and free speech. Now, European start-ups may have to compete on an uneven playing field against industry titans…”
While this is perhaps an extreme position, the wording of the law is vague and leaves a lot to national regulators. As a result, we can expect diverging approaches among EU countries, and litigation to pin down what the regulations really mean.