Net neutrality is to be imposed on US ISPs under FCC proposals. Is there a judicial trend towards similar principles being imposed in Europe?
Published on 23 Sep 2009 at 4:36 pm.
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Filed under Misc, Broadband, Net Neutrality.
Net neutrality in the US
Last Monday (21 September), the new Chairman of the FCC announced proposals for applying principles of non-discrimination and transparency to companies that control access to the internet. Describing the rules that would implement these principles as not being about government regulation but about fair rules of the road for those companies, he saw them as consistent with the original architecture of the internet as an open system. He saw his task as being to ensure that every American had access to open and robust broadband.
Giving examples of the mischief at which these rules would be targeted, he spoke of broadband providers blocking access to VoIP applications, degrading the performance of peer to peer software and even denying users access to political content. The new rules, he said, would outlaw such practices, at least so far as lawful traffic was concerned, by prohibiting broadband providers from discriminating against any particular internet content or application. The rules would not prevent them from reasonably managing their networks, such as ensuring that very heavy users did not crowd out everyone else, or prevent them from filtering spam or curtailing unlawful distribution of copyright works. They would even allow some managed services alongside traditional broadband internet access. But access providers would have to be transparent about what they were doing, an essential feature of the scheme since otherwise it would be exceptionally difficult for anyone else to know what was going on. He gave as an example the blocking of peer to peer transmissions by a cable broadband provider which came to light only when an engineer subscriber found he could not share lawful content over his home internet connection.
Net neutrality in Europe?
In Europe, the beginnings of a new net neutrality regime are stalled in the rejected Framework Review package although even if it were adopted it would not be as far-reaching as the FCC proposals. But rather like an incoming tide, there are signs that similar principles are emerging over here anyway even without the Framework Review, sometimes in rather unexpected ways. The Opinion of the Advocate General on Tuesday (22 September) in Google France v Louis Vuitton is a case in point. One of the issues in that case was whether the e-Commerce liability exemption for hosting applied to the content feature by Google in AdWords - the advertising feature that appears alongside Google’s search results. The Advocate General drew a distinction between those search results and the advertising feature. He said the aim of the Directive is to create a “free and open public domain on the internet” by limiting the liability of those who transmit or store information to instances where they were aware of an illegality. Key to that aim, he said, was Article 15 which prohibits member states from imposing a general obligation to monitor the information they transmit or store or to verify its legality. He construed it as “the very expression of the principle that service providers which seek to benefit from a liability exemption should remain neutral as regards the information they carry or host.”
It is not easy to see how that principle can be derived from Article 15 and it is a pity that he did not expand on his reasons for this construction. The parallels, however, with the FCC’s new view are striking.
Internet filtering and other traffic management is an essential and well established function of ISPs. In Europe, where market conditions are different from the US, it is not clear that rules against the kind of mischief that bothers the FCC are necessary. But there are other more pressing issues over here such as who should pay for upgrading backhaul circuits as video applications clog up the networks. Are we going to see the courts discovering hitherto undiscovered principles underlying familiar Directives and using them as a platform to impose a European version of net neutrality?