IRIS Plus 2011-5: Why Discuss Network Neutrality?
Author: Nico van Eijk, Institute for Information Law (IViR), Faculty of Law, University of Amsterdam
The freedom to receive and impart information is guaranteed by Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms of the Council of Europe. As is the case for exercising other fundamental freedoms, the mere recognition of the freedom of expression does not mean that citizens are in a position to enjoy it. For that to happen, they need to be able to communicate with each other, which in the modern world can be made possible through a wide array of communications outlets including the Internet. The European Audiovisual Observatory examines questions related to the exercise of freedom of expression regarding their importance for audiovisual media. In the context of the Internet, this means, for example, looking at the many audiovisual media services that use broadband capacity to reach the consumer or, conversely, at the content that Internet users self-generate and post on Internet platforms. Obviously, the receiving or imparting of content offered by or to audiovisual media services via the Internet presupposes access to communication networks. Whenever such access is restricted we will find somebody to diagnose an impact on the exercise of freedom of expression. Whether this diagnosis is correct and, if this were to be the case, whether the impact qualifi es as undue interference with the freedom of expression is one question discussed under the notion of “network neutrality”. It is the very issue looming in the background of this IRIS plus.
Yet it is not the only question addressed by this publication. The Lead Article, in particular, focuses on the technical and economic aspects of net neutrality as well as on where legislatures (European and national) stand with regard to ensuring this neutrality. The potential interests (and power) of communication network providers to facilitate or hinder access to communications networks is only one among many shifting parameters that the process of convergence has brought into the interplay between communications and audiovisual media services. Vertically operating telcos or platform providers supply competing services and dispose of more means (such as controlling applications and selection systems) to infl uence the value chain, as the Lead Article points out. That companies compete does, however, not necessarily imply that they apply restricting measures in pursuance of (illegitimate) business considerations. Limiting access to networks might simply be technically required because of an over-demand for existing capacity. But even when access restrictions merely respond to scarcity, net neutrality remains an issue because restricting measures have the potential to discriminate. Therefore the restraints of limited network capacity should be passed on to potential users in a way that does not amount to an anticompetitive measure or unfair business practice.
The Related Reporting-section of this IRIS plus supplies additional information related to principles for the regulation of net neutrality and reports on recent efforts towards extending broadband capacity to avoid or at least reduce scarcity. The amended EU regulatory framework for electronic communications gives member states the opportunity to deal with aspects of network management. In April this year, the European Commission fueled the discussion about network neutrality by releasing its Communication on the open Internet on net neutrality in Europe where it concludes that the Commission “will assess the need for more stringent measures”. The question of whether net neutrality needs regulation has already been answered in the US, the country where one might say the issue of “net neutrality” originated. The Federal Communications Commission (FCC) already engages in regulation and hence, the US discussion centers around whether what the FCC has done corresponds to actual needs and its legal mandate. This more advanced US discussion is explained in the Zoom section and it may turn into a European toolkit for potential solutions at this side of the Atlantic.