Image credit: Creative commons South Korea
Estelle Masse
Dec 14, 2015 · 4 min read

On 15 December 2015, Access Now is participating at a meeting of the EU Body of Telecoms Regulators. There, civil society consumer groups and experts will weigh in on the Telecoms Single Market Regulation (TSM), which includes provisions that deal with Net Neutrality, the principles that ensure that the internet stays open and free. Here’s a look at what’s happened so far in Europe, and what lies ahead for those of us seeking to clarify the rules and safeguard free expression across all member states.

When the European Parliament adopted the Telecoms Single Market Regulation (TSM) on 27 October, 2015, there were strong reactions from Net Neutrality advocates across the globe. Among the headlines you might have seen that day: “The EU just made a vote that could stifle innovation on the internet”, “European Parliament rejects amendments protecting Net Neutrality”, “European Parliament votes in favour of ‘two speed’ internet”.

The worry is that adoption of the TSM, with its vague rules on Net Neutrality, has opened the door to a two-tiered internet in Europe — one with internet service providers as gatekeepers, fast and slow lanes, some content and services prioritised over others, and the audience for new websites or innovative services going to the highest bidder. An internet, in other words, that has a very poor prognosis for fostering freedom of expression, competition, and innovation in Europe.

That’s a legitimate fear. But the story isn’t over yet. There’s still a chance to save Net Neutrality in Europe.The European Parliament adopting ambiguous rules on Net Neutrality in the TSM — while admittedly very disappointing — is less a crushing defeat than a decision not to decide. And that means that we still have the opportunity to realise the ambitious promises of the trialogue discussions among the three European governmental bodies. The vision: guaranteeing all Europeans the “most comprehensive open internet rules”, while also preventing fragmenting equitable cross-border internet services in a single market.

How we got here

Passage of the TSM caps a two-year negotiation period among the EU Commission, EU member state representatives gathered in the Council, and the Parliament. At every step of the way, civil society organisations and consumers have pushed back against creating rules for Net Neutrality that would harm users’ rights and innovation.

Until recently, two EU countries — the Netherlands and Slovenia — had Net Neutrality laws and other member states were taking action to prevent the rise of gatekeepers on the internet. To preserve non-discriminatory access to the internet, in an harmonised manner, action at the EU level was needed. In September 2013, when the Commission introduced the TSM, the text was deeply flawed. It would have enabled paid prioritisation and created a two-tiered internet, severely damaging users’ freedom to receive and impart information. Citizens and non-government groups, including Access Now, fought back under the auspices of coalition. Six months later, the European Parliament adopted a series of amendments to remove all the loopholes from the text, for the first time codifying Net Neutrality in EU legislation.

Unfortunately, one year later, when representatives of EU member states gathered in the Council, they reached an agreement that reintroduced those same loopholes, and even worse, inserted new discriminatory practices such as a mandatory, default filtering of the internet. After that, the opaque and undemocratic process known as the trialogue negotiations began. Through this process, the Parliament would negotiate with the European Commission and the Council to agree on a compromise text.

The trialogue negotiations lasted from March to June 2015. During that time, we in the coalition repeatedly urged the Parliament to stay strong and defend the text they had adopted, which protected Net Neutrality. On 30 June, the institutions finally agreed on a text, but it was a mixed-bag — weaker than the original Parliament text but much stronger than the Council text. The Parliament, under pressure from the Commission and the Council to cave in, saved as much as they could of their text.

The result: a text that provides baseline Net Neutrality protections for the EU, but given its vagueness, is open to abuse and misinterpretation. This, sadly, is the text the Parliament ratified in October.

Where we stand now

The Parliament chose not to adopt the amendments that would have clarified the rules on Net Neutrality in an ambiguous text, leaving it to EU regulators and the national courts to give the words meaning. The Parliament did not kill Net Neutrality in Europe. But it did leave it to regulators and courts to make sure it will not die.

For everyone keen on advancing Net Neutrality, this result is frustrating. After all, the EU Parliament has been calling for binding Net Neutrality protection for many years. Yet it chose to pass up a golden opportunity to get the job done. So what do we do now?

The good news is that not much needs to be done. Only four areas of the text have to be strengthened to guarantee strong protection for Net Neutrality: traffic management, zero rating, specialised services, and management of congestion.

With the ratification of the TSM, the Body of EU Telecoms Regulators (BEREC) is now tasked with developing detailed guidelines to apply the adopted rules. These regulators must finish the job that legislators began, clarifying the text to ensure that Net Neutrality is delivered across the EU — not just in theory, but in practice.

This won’t be easy. There is still intense lobbying by big corporations, and regulators will be under pressure from their national telecommunications groups to keep the loopholes in the text open. However, Access Now, together with other organisations in the coalition, will work tirelessly over the next nine months to make sure that doesn’t happen, and that the promise of Net Neutrality in the EU is finally delivered.

Estelle Masse

Written by

Policy Analyst at Access Now

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