Chris MarsdenIn another response to the Connected Continent vote in the European Parliament, Chris Marsden, Professor of Media Law at the University of Sussex, explains why he thinks it took so long to get a strong EU move on net neutrality and what he sees happening next.

On the morning of 3rd April 2014, the European Parliament did what it said it would do five years ago – enforce minimum standards on Internet Service Providers (ISPs) to stop them from blocking YouTube, BBC iPlayer, Skype, WhatsApp and other online services that European consumers enjoy. Specifically, it voted at First Reading to amend the European Commission-proposed ‘Connected Continent’ Regulation. Those European consumers are voters who matter – particularly given the imminent European elections.

But if Parliament thought it stopped discrimination by ISPs five years ago, why has it had to revisit the issue and when will net neutrality happen? The answers are both legal and political.

Legal loopholes and lack of political will

First, the law that was passed in 2009 allowed governments to impose net neutrality, but did not ban blocking and throttling of services the ISPs dislike, unlike US regulator’s action in that period. As a result, many ISPs – particularly 3G mobile operators – blocked access to Skype and Whats App. They did this via surveillance of their users with techniques such as Deep Packet Inspection (DPI). This was both illegal and highly intrusive of their users’ privacy. The reason was to block content that competed with their own, so they could then begin to market a ‘specialised service’ unblocked lane to companies such as Skype that might pay for the extra service.

Neelie Kroes, who eventually put forward the Connected Continent proposal, had a reputation as a tough, economically literate pro-competition politician, largely because she finally got Microsoft to agree to allow a choice of browsers to PC users. ‘Steely’ Neelie (UK tabloid speak even reaches Brussels) was therefore experienced in fighting technology companies to give consumers choices. Nevertheless she has taken five years to reach this point of strengthening net neutrality laws. Why?

The 2009 law was only implemented in 2011 and had very little support from the member states and their regulators (such as Ofcom in the UK), whose regulated ISPs complained long and loud about it. The economic arguments from ISPs and the tanking economy of Europe meant that politically there was not much appetite to take action.

The ISPs’ moaning to the Commission contained a germ of truth. There was some competition amongst ISPs (for instance Virgin, BT, Sky, TalkTalk in the UK) and broadband speeds were increasing. Some users were downloading as much as they could, and some services were ‘bandwidth hogs’ using up a lot of the network – NetFlix is the US prime example, BBC iPlayer a good UK equivalent. Neither of these ‘hogs’ paid the end user’s ISP, though both paid handsomely for other parts of the network that they use.

The first Barroso Commission of 2004-9 had worked in a rapidly declining European economy. The second, under which Kroes serves, has worked in an apocalyptic economy. Much of Europe has been broke for the last five years, and one of the few bright spots for consumers has been cheap and improving broadband and computing. Information technology drives new business formation and productivity increases for all businesses from micro- (home workers and individuals) to macro- (multinationals depending on executive 24/7 connectivity). If this Barroso Commission is to leave office with any dignity, then the ‘Digital Agenda’ and ISPs investing in broadband infrastructure, especially fibre, is a large part of that.

The sudden momentum

So until late 2013 there was little appetite amongst most member states or the Commissioner to enforce proper net neutrality. The option of action given under the 2009 law was ignored by all but two member states: Slovenia and deliciously the Netherlands, Kroes’ own country. The Dutch passed a net neutrality and privacy law in 2012, implemented in 2013. Kroes actually threatened to take legal action against the Netherlands’ government for daring to protect net neutrality rights for its citizens.

Then in summer 2013, she pretended to have a conversion on the Euro-political road to not bombing Damascus. She would abolish international roaming – a crowd-pleasing policy that was also handed down by her predecessor Reding – and enforce a ban on blocking or throttling apps like Skype, Whats App and the iPlayer. But – and it is a huge but – she planned a quid pro quo for the big former monopoly ISPs. She would allow them to partition the Internet into a ‘specialised service’ lane and a slower lane.

It is this that caused most of the controversy in Parliament. The Green, Pirate and socialist groups voted to restrict the ‘specialised service’ definition to real separate services. The Liberals eventually joined them, with Netherlands Liberals in D66 overcoming Denmark Liberal objections. The ISP lobby lost on 3 April. That does not mean there is a new law, though many journalists and Twitterati thought so. It means that the First Reading vote imposed the restriction on this great ‘specialised service’ loophole.

The ISP lobby reacted furiously, claiming that they would overturn the restriction or otherwise would not build the autobahn: “We are confident that the upcoming work of the EU decision makers will acknowledge such risk and will embrace the spirit of the Commission’s original proposal, confirming that the EU seeks solutions for growth, and not populist measures”. They claimed that “far-reaching restrictions on traffic management, which would make an efficient management of the network almost impossible, resulting in a lower quality internet for all.”

So what happens next?

The law as voted upon will be presented to the governments in the Council of Ministers, the European Commission will refine their answers, and there will need to be an agreed text for a Second Reading vote in the European Parliament and possibly a Conciliation Committee between the governments and new Parliament in late 2014 or early 2015. This happened back in 2009, as well. The Barroso Commission may still be around until March 2015, because the decision to replace it has to await a new President of the European Parliament, and that may be politically contentious.

Will this law happen at all? Yes, it is now very likely, but the restriction on partitioning the open Internet into a slow and fast lane might not survive. First, the governments in Council are not enthusiastic for this type of real net neutrality. They will agree to stop blocking of Whats App and Skype, but they may try to remove the language that stops the autobahn charge controls. Britain and Germany will lead the way judging by their activities last time. Second, the law as amended will then go back to the newly elected European Parliament, which is generally agreed to change significantly with many more fringe MEPs. Will they understand the issues and vote for consumers, as the Pirate MEP Amelia Andersdotter has done?

The idea of an open Internet won a battle on 3 April, but it is a long war, and that vote marked only the end of the beginning. Mrs Kroes’ grandchildren who leave the net-neutral Netherlands may be blocked from talking to her on Skype long after she retires.

This post is based on a longer version that originally appeared on the author’s Net Neutrality blog on 3 April, 2014. This article gives the views of the author, and does not represent the position of the LSE Media Policy Project blog, nor of the London School of Economics.

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