EU Telecoms Regulators Consult on New Net Neutrality Guidelines

The Body of European Regulators of Electronic Communications (BEREC), which represents national telecoms regulators from across the EU (e.g. Ofcom in the UK), has published its first draft guidelines for Europe’s new Net Neutrality rules that require ISPs and mobile operators to maintain an open Internet.

The EU officially introduced new regulation to protect the open Internet from abuse last year (here), which essentially means that mobile operators and broadband ISPs cannot impose excessive restrictions against Internet traffic (e.g. blocking or slowing access to legal websites or Internet services).

The new regulation was followed a few months later by some official “network neutrality guidelines” from the Council of Europe (here), which also called upon national telecoms regulators to develop an appropriate legal framework for the rules. As such the new guidelines from BEREC represent that framework, albeit still in draft form pending the outcome of their consultation.

However some exceptions do exist, such as when ISPs need to tackle issues that affect the security of their network (e.g. cyber-crime, DDoS attacks, email spam, viruses) or to impose court ordered measures like blocks against Internet piracy or child abuse websites etc.

The rules also allow for general Traffic Management measures to be imposed, albeit only to “prevent impending network congestion and mitigate the effects of exceptional or temporary network congestion, provided that equivalent categories of traffic are treated equally.”

Broadly speaking BEREC’s new guidelines act as useful clarification and also appear to confirm that some services, such as Three UK and EE’s proposed introduction of network-level ad blocking systems (here), might well fall foul of the rules unless they ensure that it is not enabled by default and only offered as an optional service.

Net Neutrality Guidelines (ISP Imposed Ad Blocking Systems)

“ISPs should not block, slow down, alter, restrict, interfere with, degrade or discriminate advertising when providing an [Internet Access Service], unless the conditions of the exceptions a), b) or c) are met in a specific case. In contrast to network-internal blocking put in place by the ISP, terminal equipment-based restrictions put in place by the end-user are not targeted by the Regulation.”

Similarly any ISPs proposing to offer default network-level website blocking systems, such as the one being introduce by Sky Broadband (Parental Controls) to block porn sites and other legal adult content like dating sites or social networks (here), may run into a similar conflict with the new rules. The UK Government has already said that it may be able to get around that by proposing new legislation, although this could soon become a moot point if Britain votes to leave the EU.

In the meantime BEREC’s consultation will remain open until 18th July and they aim to post a final conclusion by 30th August 2016. We should add that the UK already has a somewhat self-regulatory approach through the Broadband Stakeholders Group and its Open Internet and Traffic Management Codes of Practice (here), which has actually been in-place since 2012.

The BSG recently reviewed their code and found no reason to make any major changes (here), although they are planning to publish a slightly tweaked version in the very near future and will no doubt be keeping an eye on what BEREC has just outlined. Broadly speaking the BSG sees the new EU legislation as a regulatory backstop for its own code.