Closing the Loopholes in EU's Net Neutrality Framework


The European net neutrality rules are being reformed to fix one of the biggest loopholes in the EU‘s framework: Zero-Rating. together with EDRi and others has been vocal about the dangers of Zero-Rating, a practice by which telecoms companies discriminate between online services by making some data traffic more expensive than other such traffic. Prompted by three judgments of the Court of Justice of the European Union, the Board of European Regulators for Electronic Communications (BEREC) has acknowledged that their previous 2016 Guidelines on how to enforce the Net Neutrality Regulation have to be overhauled. The direction of the reform is looking to confirm the previous submissions of EDRi over the past six years and today we add another submission to BEREC with the hope of fixing the last loophole in Europe’s net neutrality framework. 

Since 2015 the European Union has had legal protections for the principle of net neutrality. These protections guarantee users' rights to equal and non-discriminatory access to the whole internet and prevent telecoms companies from interfering with how we use the internet. The EDRi network and office were center stage in this fight, first by pushing the European Commission to even propose legislation on the issue of net neutrality. Eventually such a legal proposal was launched in September 2013 under Digital Commissioner Neelie Kroes, but it left much to desire and was more of an attempt to trade net neutrality away for lower roaming charges. Hence, EDRi had to mobilise and in 2013 launched the campaign which followed the legislative process over three and a half years to put pressure on lawmakers to uphold internet freedom. Over 40,000 faxes, several demonstrations and the engagement of almost half a million citizens have brought us victory and an almost perfect net neutrality framework in Europe. 

From 2018 to 2020 BEREC reformed the first version of its Guidelines on implementing the Net Neutrality Regulation to incorporate challenges posed by technological elements of the next generation of the mobile network standard 5G. Again EDRi participated in the process and the EDRi member provided input in a report sumarising the Net Neutrality situation in Europe over the first 2.5 years since the framework had come into effect. This report also highlighted the discriminatory effects of zero-rating offers and how in particular so called "open class-based" offers like StreamOn or Vodafone Pass are damaging for the single market, innovation and user choice. The report also found that the company most benefiting from Zero Rating is Facebook, that runs two of the top three zero-rated services in Europe. Only three of the top 20 zero-rated offers in Europe are actually from Europe. The reform of the Guidelines eventually upheld the principle of user-choice in the 5G network, as well as confirming a ban on the privacy-invading practice of Deep Packet Inspection (DPI).

The remaining problem for the net neutrality situation in Europe is Zero-Rating. In all but two EEA countries this practice became widespread, sometimes with making the price of a gigabyte of YouTube 70-fold more expensive than the price of a gigabyte of other internet services. EDRi has argued since 2016 that the EU Net Neutrality Regulation provided the legal basis for a ban on Zero-Rating. But telecom regulators chose not to act and the BEREC Guidelines have only provided a soft-touch approach to the problem by leaving it to regulators to deal with this problem on a case-by-case basis. This regulatory standstill was broken up by three judgments of the Court of Justice of the European Union that decided Zero-Rating violates the general non-discrimination provision of the Regulation. In earlier judgments the Court focused more on the technical aspects of throttling non-zero-rated traffic. But with the recent judgments telecom regulators can no longer ignore the situation that presents itself regarding to zero-rating.

BEREC has launched a consultation to which EDRi and 12 members have responded today. This is the starting point of a reform process which will lead to an update on the Net Neutrality Guidelines to hopefully finally acknowledge the unsolved problem of Zero Rating. A draft of the updated Guidelines will be up for consultation in March 2022 and the final decision is expected in the BEREC plenary in June or October 2022. We have to expect that the telecoms industry will do everything in their power to prevent clear rules that would prohibit a widespread practice that they have adopted in almost every EU country in order to cement their market position. It will be on civil society to enter into this debate once more to finally complete the net neutrality framework in Europe. 

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