Ofcom Begin New Review of UK Net Neutrality Rules Post Brexit UPDATE

The national telecoms and media regulator, Ofcom, has today started a review of their existing Net Neutrality rules, which were designed to ensure no serious blocking or slowing of access to legal websites or internet services by broadband ISPs and mobile operators. But such protections may soon change.

Back in 2011 the United Kingdom became one of the first countries within Europe to adopt a self-regulatory approach toward protection of the open internet from abuse (here). Indeed, those rules also provided part of the foundation for the EU’s own approach back in 2016 (here), which was later adopted into UK law.

In short, the regulation essentially means that providers cannot impose excessive restrictions against internet traffic and should treat almost all of it equally (i.e. they generally shouldn’t favour specific services, such as by blocking or slowing access). However, there are some exceptions to this, such as for when providers need to impose general traffic management, court ordered blocks or security measures (e.g. anti-virus/spam filtering).

The rules also help to stop ISPs from favouring content sources based on who pays them the most money, which might in turn lead to a degraded experience for other users (e.g. slowing the quality of Netflix or YouTube). This helps to ensure that excessive access controls over content don’t result in a walled garden style internet experience in the UK.

Likewise, the rules also prevent ISPs from being allowed to block certain legal internet platforms and services, such as when allowing their customers to access one VoIP provider, while at the same time blocking access to another (rival) operator (e.g. some mobile operators used to block VoIP calling over data).

In the UK these rules are applied via somewhat of a soft approach (i.e. it may be better to think of them as guidelines), which are governed by the Broadband Stakeholder Group (BSG) and their 2016 Open Internet Code. The code commits signatory ISPs to neutrality and transparency in traffic management on their networks (details).

Ofcom has generally also taken a fairly soft approach to enforcement of this, preferring to nudge operators into changing their ways rather than being more aggressive with penalties. However, the big ISPs, particularly those with strong interests in the content (e.g. TV) space, have never fully given up on their desire for more flexibility and that was underlined earlier this year by BT’s call for greater freedom (here).

The New Net Neutrality Review

For its part, the regulator has recognised that the UK is no longer a part of the EU, and thus it has become prudent to review some of their associated rules, with the Net Neutrality regulations being an obvious target (remember, the UK was a pioneer of protecting the open internet via self-regulation, and long before the EU turned it into law).

In addition, Ofcom notes that since the rules were introduced, there have been significant changes in the wider environment. “There are new, innovative and evolving technologies emerging in residential and business contexts (e.g. internet of things devices). These are underpinned by catalysts such as the emergence of 5G technology, and the accelerated move to the cloud,” said the regulator.

“There are also increasing capacity demands from people and businesses,” said the regulator in a statement of the obvious. Data demands are always rising every single year, that’s normal as technology evolves. But for now, Ofcom are not taking a view on how the rules should change and their Call for Evidence is merely seeking feedback, but some change still seems inevitable.

Ofcom’s Statement said:

“We want to take a broad look at how the net neutrality framework is functioning. We will consider how it can best serve citizen and consumer interests and promote access and choice, while allowing businesses to innovate and invest in support of a vibrant and dynamic digital sector.

Through this call for evidence we want to engage with industry and other interested parties. We welcome views from ISPs, platforms, experts, users, and other interested organisations on the functioning of the framework, relevant developments in technology and demand, and any issues and challenges that will support our understanding of the impact of the framework in practice.”

At this point it’s worth remembering that demand for broadband and mobile data services would not exist without internet content providers (e.g. YouTube, Netflix, websites etc.). Some ISPs may complain that the increase in related data usage from these services and others raises their costs, but that’s the nature of the beast (a cost of doing business) and should ideally continue to be reflected in the prices we all pay as end-users.

Ofcom now intends to invite responses until 2nd November 2021, and they then expect to publish the initial findings from their review during the Spring of 2022. We can only hope that it continues to strike the right balance and doesn’t erode vital consumer protections.

In our view, the existing rules, while imperfect, have generally worked well to keep the balance fair and the internet open (as it was always intended to be). Ofcom will need to be very cautious as they move to re-examine this most contentious of areas.

UPDATE 4:34pm

BT has given their reaction to the start of Ofcom’s review, although they’ve yet to spell out exactly what they want to see changed, and until that happens then we’ll remain sceptical of their intentions.

Marc Allera, CEO of BT’s Consumer Division, said:

“It’s in everyone’s interests to maintain a fair and open internet but that requires rules to adapt to the way the internet has evolved. With the dependency on online services continuing to grow, we believe the time is right for Ofcom to be reviewing this important area, supporting the industry to enable a positive experience for all users in the years ahead.”