EU’s net neutrality is biased, flawed – and entrenched

Features

After a year’s investigation, John Strand of Strand Consult explains how Europe’s net neutrality law is doing far more harm than good to operators and consumers alike, and is built on many wrong-headed assumptions.

The EU’s net neutrality law has been in place for more than two years, and the European Commission has scheduled to review its implementation in 2019. Policymakers promised that the law would bring more innovation and protect end-users’ rights, but it appears to do the opposite.

The EU cannot point to new innovation arising from law, rather it is used by European regulators to restrict internet products and services that consumers want. In the meantime, dominant Silicon Valley platforms have increased their market share in Europe and the investment gap in the EU has widened; now the region is two years behind the US and Asia on 5G rollout.

In early December 2018, the Body of European Regulators for Electronic Communications (BEREC) released its opinion about its implementation of the net neutrality law. It declared the implementation correct, but did not mention the many problems it created for operators, including six or more regulatory investigations of ‘net neutrality violations’ to justify its heavy-handed approach.

No mention of problems

BEREC is striving to invent a reason to extend its regulation of the internet and attract public attention. Rather than implementing the law, BEREC re-interprets it to realise its vision of the internet. Though BEREC’s pronouncements are non-binding, it exerts peer pressure on national regulators to align to a common view and exploits the law’s reporting requirement to force the toughest interpretations.

Over the past year Strand Consult fought to create transparency in BEREC’s work and faced opposition to its legal requests made under Europe’s freedom of information laws.

Despite significant protest and delay from the organisation, Strand Consult succeeded in gathering the minutes of more than 40 meetings on net neutrality held behind closed doors, many of which were heavily redacted.

The information sheds light on how a subset of activist EU regulators are pushing the interpretation of the law to conform to their personal ideologies and how a select group of net-neutrality activists (funded by powerful Silicon Valley companies and global foundations) receive privileged access to the process to inform BEREC’s decisions.

Here are some of the investigation’s main findings:

• BEREC’s goal is to create a de facto regulatory regime designed around speed measurement to give preference to certain kinds of technologies and methods – a clear violation of the EU law’s provision for technological neutrality.

• Those speed measurements are gratuitous and egregious, garnered from bogus crowd-sourced measuring tools to create user-generated complaints on missed speed targets.

• These are automatically forwarded to regulators so that operators can be penalised.

• EU policymakers wrongly assume connection speeds will increase linearly indefinitely, regardless of whether users want to pay for higher speeds or applications need them.

• This fixation with speed has limited consumers’ choice of preferred features like flexible pricing, service quality, safety, durability, and so on and amounts to a regulatory taking of consumers’ and producers’ welfare without compensation.

• BEREC’s preferred group of stakeholders are advocacy organisations AccessNow, EDRi, ISOC, and BEUC, all of which apart from BEUC are funded by Google and only deal with consumers in the capacity of ISP customers. Yet information from these organisations is how BEREC claims to know what all consumers want.

• The invasive nature of monitoring networks and BEREC’s desire to implement always-on surveillance amounts to an invasion of users’ privacy and violation of provisions 8, 9, and 10 of the European Convention on Human Rights.

Penalties for net neutrality violations differ wildly across countries, from thousands to millions of euros for an infraction, which seems to violate EU competition standards.

• Operators’ efforts to protect users and secure their networks is being increasingly hindered by net neutrality rules.

EU law allows zero rating, but some countries and regulatory authorities want to criminalise it, prosecuting operators for traffic management practices rather than commercial ones to avoid time-consuming economic assessments which often favour the operators.

Having been exposed for lack of transparency, BEREC has promised to do better. It will be interesting to see if it improves under the leadership of Jeremy Godfrey, the head of Ireland’s ComReg. Strand Consult’s report, Net Neutrality in EU after 2 Years: Why the operators keep losing the battle against net neutrality regulation, investigates each country in depth and provides an overall summary on the law’s implementation both quantitatively and qualitatively.