BEREC advises national regulators on new EU Open Internet rulessamiragazzane
BEREC, the European body of National Regulators for Electronic Communications, issued its Guidelines of interpretation of the Open Internet rules (EU Regulation 2015/2120). In implementing the Regulation in the UK, Ofcom will need to take “utmost account” of BEREC’s recommendations. Whilst the Guidelines do not impinge on the UK’s approach to the Open Internet, they build on the new BSG Open Internet Code of Practice, recently reviewed to reflect the requirements of the new EU rules.
The Guidelines are the last stage of development of EU-wide net neutrality rules and are designed to support national regulators in the consistent application of the new legislation across the EU. During the public consultation that took place over the summer, to which the BSG responded, there was unprecedented interest in BEREC’s work. Nearly half a million responses were submitted from a variety of stakeholders across the world including public institutions, Internet Service Providers (ISPs), Content Application Providers (CAPs) and civil society – the majority of the latter from public campaigns advocating strong net neutrality rules. The variety of views on the draft Guidelines stems from the wider public debate on net neutrality which started a few years ago in the US and more recently in Europe with negotiations of Regulation 2015/2120.
The general approach taken by BEREC in the drafting of the document was a key concern for stakeholders, as some considered the recommendations to not go far enough in ensuring the enforcement of the new net neutrality rules whilst others considered them to be overly prescriptive with the introduction of new definitions, concepts and rules which didn’t explicitly appear in the Regulation.
In its finalised Guidelines, BEREC took a strict stance in its interpretation of how consumer choice is exercised in the context of network-internal blocking, despite a consensus from both industry and civil society on this particular issue. Whilst stakeholders held the view that end-users exercise their choice when they voluntarily allow their ISP to block certain content at the network level, BEREC considered that this practice would not be consistent with the Regulation, however choice is exercised by end-users’ applying traffic management features independently on their individual terminal equipment. This would mean for example that ad-blocking or filtering undertaken at network level even with the consent or request of the end-user may be considered as non-compliant by a national regulators.
The Regulation and Guidelines do not explicitly allow the deployment of parental control filters or the blocking of websites portraying child pornography (as listed by the Internet Watch Foundation), relying instead on national legislation to regulate these areas. It is worth noting however that the BSG Open Internet Code of Practice, recently reviewed and adopted with the support of Government, Ofcom, CAPs and other stakeholders clearly reiterates ISPs’ commitment to maintain these practices and to continue ensuring child online safety with the deployment of relevant tools.
Tethering and zero-rating
BEREC indicates that restrictions on tethering would likely constitute an infringement to the Regulation, despite some ISPs arguing that this could impede innovation and their willingness to create unlimited data offers.
The interpretation of the rules covering the offer of specialised services (other than internet access services) and zero-rated services was closely aligned to the Regulation, with BEREC also underlining that national regulators are not expected to perform an ex-ante assessment of the compliance of these services with the Regulation.
The transparency requirements of the Regulation were also covered by the Guidelines with BEREC providing its interpretation as to how information on speed and quality of service should be communicated to the consumer. The BSG Open Internet Code of Practice includes specific guidelines for ISPs on transparency of information relating to traffic management practices. It even goes as far as committing signatory ISPs to provide consistent information by the use of a Key Facts Indicators table, a tool which was deemed to add value above and beyond the Regulation by independent consultants.
The UK approach on the Open Internet was and is still based on the BSG Open Internet Code of Practice. The success of the Code is explained by the competitive nature of the UK market which, combined with self-regulatory rules, allowed for new innovative services to be developed. The EU Regulation now complements this approach and provides a regulatory backstop. Its implementation will be enforced and monitored by Ofcom, with which the BSG will continue to engage with in the coming months.