Professor Lorna Woods, University of Essex

New EU regulations designed to ensure equal treatment of internet traffic were enacted in the fall of 2015 and implemented in April 2016. These net neutrality rules were intended to prevent discrimination by internet service providers and promote innovation, but their effectiveness was debated.

The regulations stipulate that internet providers should treat all traffic the same, regardless of the source, content, or device. However, the vague language and exceptions within the regulations led to uncertainty regarding the level of protection for users and permitted provider activities.

To address this uncertainty, the Body of European Regulators of Electronic Communications (BEREC) developed guidelines, addressing three key areas: zero-rating, traffic management, and “specialized services”.

Zero-rating

The Issue: Zero-rating, the practice of not counting certain data sources towards a user’s monthly limit, allows providers to charge differently for similar services. Concerns arise about potential favoritism towards specific content or platforms, impacting diversity and user choice.

The Regulation: Does not prohibit zero-rating.

The Guidelines: BEREC proposes a case-by-case evaluation of zero-rating based on its impact on competition, user rights, and media plurality.

This approach seeks a middle ground, allowing regulators to address specific threats to diversity. However, the effectiveness of these safeguards remains uncertain, particularly for new companies, as providers might exploit loopholes, potentially impacting content and platform diversity.

Traffic Management

The Issue: Traffic management, the prioritization or restriction of data flow, can be used to address network congestion or prioritize specific applications. However, it raises concerns about service discrimination, potentially disadvantaging specific services or content providers.

The Regulation: Allows “reasonable traffic management” under specific conditions like compliance with laws, security, and congestion management.

The Guidelines: Advocate for service-neutral traffic management, prohibiting the prioritization or blocking of specific applications. However, internet providers can differentiate between data types like video or gaming if based on technical requirements, not commercial interests. This approach aims to optimize network use but sparks debate about infrastructure costs and who bears the responsibility for upgrades.

‘Specialized services’

The Issue: This term, absent in the regulation, refers to services requiring special network treatment (e.g., telehealth applications). Concerns focus on potential loopholes for paid prioritization, creating a two-tiered internet.

The Regulation: Allows “specialized services” under specific conditions, including no detriment to regular internet services and sufficient provider capacity.

The Guidelines: Narrow the definition of “specialized services” to those requiring specific network capabilities not available on the open internet. These services must be objectively necessary and not used to bypass net neutrality rules. While the guidelines aim to prevent misuse, concerns remain about potential circumvention and the need for close monitoring by national regulators.

BEREC’s openness to revising these guidelines remains to be seen. Both net neutrality advocates and telecom operators have expressed concerns, highlighting the ongoing debate about striking a balance between an open internet and incentivizing network development. This debate revolves around responsibility for infrastructure costs, with questions about how different stakeholders, from infrastructure providers to end-users, should contribute.

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