EU Telecoms Regulators Publish Final Net Neutrality Guidelines

A key group representing telecoms regulators from across the EU (e.g. Ofcom in the United Kingdom) has published their final Net Neutrality Guidelines, which are designed to govern how broadband ISPs and mobile operators will be expected to maintain open Internet access.

The EU introduced new regulation to protect the open Internet from abuse in 2015 (here), which essentially means that broadband ISPs and mobile operators cannot impose excessive restrictions against Internet traffic (e.g. no blocking or slowing access to legal websites or Internet services).

The Body of European Regulators of Electronic Communications (BEREC) then took up the task of converting those rules into something that Internet access providers could implement and their first Draft Guidelines were published in June 2016 (here). Apparently this attracted an “unprecedented” number of responses (481,547 contributions) from a wide range of organisations and people.

Since then BEREC claims to have “conducted a thorough evaluation of the contributions” (see BEREC’s reply to some of the key contributions) and as a result they have updated about a quarter of the paragraphs in the final Guidelines (read the Final Net Neutrality Guidelines).

BEREC – What does the new law mean for net neutrality?

ISPs are prohibited from blocking or slowing down of Internet traffic, except where necessary. The exceptions are limited to: traffic management to comply with a legal order, to ensure network integrity and security, and to manage congestion, provided that equivalent categories of traffic are treated equally.

The provisions also enshrine in EU law a user’s right to be “free to access and distribute information and content, run applications and use services of their choice“. Specific provisions ensure that national authorities can enforce this new right.

Various questions were raised over how this might impact things like Tethering on mobile broadband networks or broadband packages that are sold with a capped data allowance (will they be banned or allowed etc.), although BEREC’s response to some of these points seems to be just as conflicted as the regulation they’re trying to reflect.

For example, on Tethering BEREC says that “the restriction of tethering is likely to constitute an infringement of the Regulation,” but then they also add “that the guidance does not amount to a per se prohibition of restricting of tethering.”

On capped data allowances BEREC seems to say that they are allowed, so long as the provider allows end-users to access to order additional data when their cap is reached (e.g. by visiting an online order form), which “BEREC considers a potentially beneficial and practical step that would likely not lead to a limitation of the exercise of end-users’ rights“.

The guidance also appears to say that providers offering IPv4 only connections and not IPv6 would not be considered to be in breach, which is despite the fact that an admittedly tiny amount of online content is only available to IPv6 connections. This might become more of an issue in a few years’ time.

Meanwhile Three UK and EE’s proposed introduction of network-level ad blocking systems (here) might well still fall foul of the rules, unless they ensure that it is not enabled by default and only offered as an optional service. But even then BEREC seems to dance around the issue and suggests that even optional blocking, unless it occurs on your own hardware / computer (i.e. not on the ISPs network), might fall foul of the rules.

BEREC – Optional ISP Level Traffic Management Measures (Ad blocking etc.)

“With regard to some of the suggestions made by stakeholders about traffic management features that could be requested or controlled by end-users, Berec notes that the regulation does not consider that end-user consent enables ISPs to engage in such practices at the network level.

End-users may independently choose to apply equivalent features, for example via their terminal equipment or more generally on the applications running at the terminal equipment, but Berec considers that management of such features at the network level would not be consistent with the regulation.”

Broadly speaking BEREC has largely tweaked the language to reflect different use cases, although the original approach remains intact and some confusion (as above) appears to have been left up to national regulators and Governments to resolve through either voluntary or legislative approaches (e.g. if the UK government wants to impose mandatory filtering of adult Internet content upon ISPs then they’d need to do it through new legislation).

In reality the new rules were always going to be a difficult balancing act because modern networks are extremely complicated and you can’t easily treat all Internet traffic as equal (i.e. the very definition of Net Neutrality) without causing problems elsewhere, such hampering the availability of premium Internet based IPTV services.

Equally ISPs need other exceptions, such as those allowed by BEREC above, so that they have the flexibility to tackle issues that may affect the security of their network (e.g. cyber-crime, DDoS attacks, email spam or viruses etc.) or to impose court-ordered measures like blocks against Internet piracy or child abuse websites etc.

As things stand the United Kingdom does not yet have a major problem with Net Neutrality, except for a few smaller incidents. As such most consumers probably won’t notice the impact of these rules and the Broadband Stakeholders Group has already revised their Open Internet Code of Practice for ISPs in order to bring into line with new EU regulation.

NOTE: The Brexit vote does throw a possible spanner in the works here (at least it might from around 2020 onwards), although at the very least we’d still expect the BSG’s Open Internet Code to be maintained. The BSG’s code has existed since before the EU even had a policy in place.