A brief overview of the principle of net neutrality
Net neutrality is intended to ensure the free flow and non-discriminatory treatment for all data flows on the Web. It therefore requires Internet Service Providers (ISPs) to handle all traffic equally, without discrimination or restriction, regardless of the sender, recipient, content, service or user terminal equipment.
Net neutrality is tightly connected to both freedom of expression and freedom of communication: as the Internet was conceived as a network facilitating the free exchange of information and open access to knowledge, this principle ensures that the network stays neutral and that the flow of information may not be constrained or prioritized by operators and other platforms, particularly to satisfy commercial needs.
In Europe, net neutrality has been enshrined in the 2015 European regulation on access to an open Internet, which essentially prohibits ISPs from putting in place agreements or commercial practices that limit the exercise of users’ rights to access and distribute content.
The Regulation further provides that ISPs have the possibility to adopt reasonable traffic management measures based on objective differences in the technical quality of service requirements relating to specific categories of traffic. However, they may not derogate from their general obligation to treat all data flows equally because of purely commercial considerations.
DECISION BACKGROUND AND SOLUTION REACHED BY THE CJUE
The case before the ECJ dealt with the two offers “MyMusic” and “MyChat” of the Hungarian ISP Telenor, both operating on the principle of “zero rating”
Customers of this ISP were able to purchase a package allowing the use of a certain amount of data, without having to pay for the use of specific services and applications (such as Facebook, Whatsapp or Deezer, for example). Once the volume of data had been consumed, they could continue to use these applications and services without restriction, while at the same time blocking or slowing down traffic to other competing applications and services.
The question raised was therefore whether an ISP could offer these so-called “zero-rate” bundles without undermining the principle of net neutrality; the CJEU ruled very clearly in a negative light.
According to the CJEU, this type of offer is likely to amplify the use of certain specific services or applications to the detriment of other competing services. The Court points out that the more the number of Internet users concerned by these offers increases, the more these “harmful effects” are intensified.
Moreover, since any measures to slow down or block traffic are based not on objective differences between the technical requirements for quality of service for specific categories of traffic, but on commercial considerations, such measures must be considered incompatible with the principle of net neutrality.
In its press release, the ECJ summarized its position as follows:
” Requirements for the protection of Internet users’ rights and the non-discriminatory treatment of traffic prevent an Internet service provider from favoring certain applications and services by means of offers which give those applications and services the benefit of a “zero rate” and make the use of other applications and services subject to blocking or slowing down measures”.
ISSUES AND CONSEQUENCES
While so-called ” no tariff ” or ” zero rating ” offers were until now perceived as being in a legal grey area, the CJEU has very clearly put an end to such practices as soon as measures to slow down or block traffic are based on commercial considerations. The conclusion is clear: ISPs cannot give preference to one service provider over another (e.g. Deezer over Spotify).
This much-awaited decision further strengthens the net neutrality in Europe at a time when, on the contrary, it is being challenged in the United States.
In fact, for nearly three years now, the United States, under the Trump administration, has put an end to net neutrality by virtue of a vote in December 2017 by the Federal Communications Commission (FCC).
As a result, unlike European ISPs, American ISPs have been able since the end of 2017 to block or reduce Internet traffic based on user usage in order to give priority to certain content, and also have the possibility of offering their customers paid “options” for faster access to certain services.
The American decision to put an end to the guarantee of equal treatment of data flows is rather paradoxical given that the United States has always placed the “freedom of speech” at the heart of its values and that net neutrality is promoted by its defenders as the means to guarantee an equal exercise of freedom of expression for all on the Internet.
Commercial considerations have visibly superseded this fundamental freedom.
Recalling that commercial interests in Europe should in no way prevail over the principle of net neutrality, the CJEU thus adopts a position radically opposite to that adopted by the United States.
This issue is so crucial that it has become one of the stakes of the current election campaign in the United States, since the Democratic candidate has declared that a Biden administration would restore the principle of net neutrality.