The European Parliament has (on 3rd April) voted (at first reading) on a legislative proposal which includes new rules on “net neutrality”[1]. The text of this is not yet available in English but this note is based on our own informal English translation.

The heart of these new rules is contained in paragraph 5 of the proposed Article 23. This says as follows (emphasis added):

Providers of internet access services and end-users may agree to limit data volumes or speeds for internet access services.  Providers of internet access services shall not restrict the freedoms provided for in paragraph 1 [which provides for access to information and services across the European Union] by blocking, slowing down, altering, degrading or discriminating against specific content, applications or services, or specific classes thereof, except in cases where it is necessary to apply traffic management measures.

According to this text then, ISPs, MVNOs and other network operators (whether fixed or mobile) would seem to be prevented from deliberately slowing or blocking specific content and preferring competing content services  unless it could be justified as “traffic management” (which is only permitted on the basis of protecting the network in a proportional way, or where required by a court order).  This would prima facie prevent  what is currently the fairly common practice by some operators (especially mobile operators) of, for example, blocking some OTT (Over The Top) services like Skype or WhatsApp on their networks.

However note also the proposed text for paragraph 2 of Article 23 (emphasis added):

2. Providers of internet access, providers of electronic communications to the public and providers of content, applications and services shall be free to offer specialised services to end-users. Such services shall only be offered if the network capacity is sufficient to provide them in addition to internet access services and if they do not interfere with the availability or quality of internet access services. Providers of internet access to users shall not discriminate between functionally equivalent services and applications.

This creates an exception allowing operators to offer “specialised services” so long as they do not impact on the network quality for other services. Examples might perhaps include network infrastructure investments into a parallel Content Delivery Network (CDN) in partnership with providers like Netflix. However it is not clear what the impact of the emphasised text about “functionally equivalent” services would be – this could be read, for example, to mean that operators can’t offer a “specialised service” for Netflix content unless they also offer the same service in respect of “functionally equivalent services” like, in this case, Lovefilm (Amazon Prime Instant Video)

The result, if the text remains unchanged in its final version, is certainly very confusing. On the one hand it seems clear that operators would be permitted to set up separate classes of “specialised service” but on the other they would not be able to do this if it amounted to discrimination between functionally equivalent services (Article 23 para 2) or if they discriminate against certain types of content (para 5) . Facebook has, for example, suggested that it might like to do deals with mobile operators allowing Facebook content to be downloaded free of charge (ie without using up any of the data elements of a user’s plan). Such a service might in future fall foul of the rules against “discrimination”.  If so then the scope to rely on paragraph 2 to establish a “specialised service” would seem to be very limited, other than in respect of pure quality of service measures (such as bandwidth or latency).

It is to be hoped that these issues will be clarified before the regulation reaches its final form in the coming weeks.

We have a full English translation of the whole of Article 23 – contact me for details.

[1] (Committee report tabled for plenary, 1st reading/single reading dated 20 March 2014) (Decision by Parliament, 1st reading/single reading dated 3 April 2014- not yet available in English)