Toby Crick and George Adje
“All data packets are equal”, says the European Union. But should some be more equal than others? At the end of August, BEREC - the Body of European Regulators for Electronic Communications - published a set of guidelines for national regulators (i.e. the UK’s Ofcom and its European equivalents) as to how the EU’s new net neutrality regulation is to be interpreted. It is being seen as some of the clearest net neutrality guidance issued by any regulatory body anywhere in the world.
What is net neutrality?
A customer’s enjoyment of a service such as Netflix or Spotify is dependent on their internet speed. If their connection receives data too slowly, streaming will stutter or stall - a frustrating experience. So it is important that such services can maintain a good connection to the customer. Maintaining the internet connection is the responsibility of the customer’s ISP.
It is therefore conceivable that a content provider could come to an agreement with an ISP, under which the ISP provides a guarantee to the content provider that their data will always be sent at above a minimum rate, in order to ensure at least a minimum quality of service. Other providers of similar services, which have not made such an agreement, do not receive such a guarantee and so cannot ensure a high data transfer rate, potentially leading to a loss of favour with customers.
An alternative scenario is that an ISP might wish to offer a variety of internet packages to its customers: a premium “access all areas” connection, and a number of cheaper deals which allow access only to subsections of the Web - so that customers are able to choose which sections of the Web they are willing to pay for access to. Similarly, an ISP might wish to provide a blocking service in order, for example, to prevent access to certain categories of website.
The concept of ‘net neutrality’ is a simple one: all data packets are equal. No packet is prioritised over any other - none is sped up, slowed down, or blocked entirely from being received.
Proponents of this approach believe that it is important that the Internet remain a level playing field. Successful corporations, they argue, should not be allowed to pay ISPs to for preferential treatment, and ISPs should not be given the opportunity to charge content providers for the ability to remain competitive.
The pendulum of European policy has swung firmly in favour of the net neutrality lobby. Regulation 2015/2120, published on 25 November 2015, enshrines the concept into Union law and prohibits the practice of content providers (referred to in the guidelines as ‘CAPs’) contracting with ISPs to put a lower bound on the bit rate at which users receive their content over a normal internet connection. The Regulation also prevents ISPs from blocking access to websites, unless it is done in order to comply with EU or Member State law.
What do the guidelines add to the Regulation?
BEREC’s finalised guidelines interpret the Regulation - and, in so doing, reduce the ambiguity which is often prevalent in freshly-minted EU legislation. The guidelines are to be used by national regulators in assessing the practices of ISPs. BEREC has read each Article of the Regulations alongside their corresponding Recitals (non-binding preambles to the legislation, which provide an amount of background information about the specific purpose of the Articles), and has provided useful commentary on the kinds of practice that are likely to be deemed acceptable under the Regulation.
While confirming that ‘assured quality of service’ agreements of the type discussed above would be illegal in the case of web services, BEREC mentions that such agreements are acceptable in the exceptional cases of so-called ‘specialised services’ - such as remote surgery connections allowing doctors to operate on patients by remotely controlling a robotic arm - which, while provided by ISPs, are separate from and do not allow a connection to the World Wide Web.
The guidelines discuss the practice of ‘zero-rating’, whereby a consumer’s use of a particular service does not eat into their data allowance, allowing them unrestricted use of that service even after their data cap has been reached and their connection throttled or blocked.
Such a practice is at odds with the fundamental principle of net neutrality, and BEREC has stated that doing so would contravene the Regulation.
A subtlety arises, however, if an entire category of services is zero-rated. Although not obviously within the letter of the law, it is perhaps within its spirit: it is more difficult to argue that zero-rating, all music streaming services, for instance, is an anti-competitive practice.
On this issue, BEREC remains circumspect. This kind of zero-rating is not expressly prohibited in their interpretation of the Regulation, but they do emphasise that any such practice would need to pose no threat to the ‘continued functioning of the internet ecosystem as an engine of innovation’ or to ‘the essence of the end user’s rights’.
Traffic management, content blocking, and Brexit
The Regulation enforces the equal treatment of all internet traffic, “irrespective of the sender”, and the guidelines reflect this. This is problematic for ISPs that employ traffic management measures in order to provide a uniform quality of service for their users. The only forms of traffic management that the guidelines suggest are acceptable are those in which categories of internet traffic are managed based on “objectively different technical quality of service requirements” for no longer than is necessary – for example, deprioritising instant message traffic in favour of streamed video during peak times.
The same regulatory requirement prevents ISPs from implementing ad- or site-blocks, which is likely to cause some consternation among those who believe that it is the responsibility of ISPs to protect children from accessing adult content. It is possible that a clarification will be sought from Brussels on this point. Another aspect of blocking, namely ad-blocking, is likely to prove much more controversial. While consumers are seen to hate pop-up ads, on the face of the guidelines ISPs will be prohibited from offering ad-blocking services. While ISPs are already lobbying against this, media companies and others reliant on advertising income is likely to lobby hard against any watering down of the prohibition of ad-blocking.
Given the Regulation and this Guidance will apply in the UK until such time as the UK formally leaves the EU, ISPs in the UK will undoubtedly approach the Regulation very seriously. How future post-Brexit telecoms regulation will work of course, remains to be seen.