One year later: EU right to open internet still virtual

Swedish Telia allows some users to use Spotify's music streaming app regardless of how much data they have left.

Sounds nice, doesn't it?

There is only one problem: It might very well be illegal.

Zero-rating

The type of offers that are described above are called zero-rating, because providers offer a service at the rate of €0.

But digital rights activists say this commercial practice goes against the principle of network neutrality, which has been a legal right to EU citizens since one year ago this weekend.

That principle says that a provider of internet access should not discriminate between services offered online, or give one preferential treatment over the other.

Without that principle, it would be difficult for newcomers to challenge existing services.

In the above examples, access is given to WhatsApp, Facebook Messenger, and Spotify in a situation when competing chat apps and streaming services are being blocked.

Case-by-case

The European Union legislation on open internet access does not specify if zero-rating is allowed.

Instead, the EU lawmakers decided to leave it to national authorities to determine it on a case-by-case basis.

“They kicked the can down the road,” said Thomas Lohninger, long-time activist involved in getting net neutrality enshrined in EU law.

That happened in 2015, when an EU regulation that included rules on open internet access was adopted.

Critics at the time were worried that the legal text was riddled with loopholes. The plenary debate in the European Parliament about the regulation was somewhat bizarre.

One part of the MEPs, mostly those in the largest centre-left and centre-right groups, said the new text would guarantee an open and neutral internet.

A smaller part said that they thought the text would make sure that the exact opposite would happen.

The open internet access rules came into force one year ago on Sunday, on 30 April 2016.

But it was not until the end of August 2016, when the Body of European Regulators for Electronic Communications (Berec) issued guidelines interpreting the EU regulation, that net neutrality fans gave a sigh of relief.

The Berec guidelines closed the loopholes, they said. But even then, that was just the theory.

“One could think that we are done,” said Lohninger, who spoke to EUobserver at the recent Rightscon digital rights conference in Brussels.

“We have the [net neutrality] law, we have the guidelines for the regulatory implementation. Everything seems to be settled, right? Not really. The European regulators still have to enforce the law and follow the guidelines they have agreed on," he said.

And that enforcement does not come automatic, he added.

“Many of the regulators have a very personal relationship with industry, because people working for regulators have a professional past in the industry and vice-versa,” he said.

“In particular in countries where the state still holds shares of the incumbent, like in France, Germany, UK, or Spain, the regulators are more hesitant.”

Member state watchdogs do not always agree on what constitutes zero-rating.

The regulation also left it to individual member states to determine how high fines for a violation of net neutrality should be.

Without active national regulators, the right to net neutrality is nothing more than a theoretical concept.

But Lohninger has helped set up a citizens' initiative to flag possible violations on a website, in case national watchdogs do no do their jobs.

The website, Respect My Net, which was launched in March 2016, said there had been 89 confirmed reports of violations. A list on the site showed that more than half of them involved zero-rating.

That could be because those are more easy to spot.

“Sometimes you just have to follow the advertisements”, said Lohninger.

Too soon to tell

After one year of EU citizens having the legal right to open internet access, Greens MEP Michel Reimon said it was too soon to determine the regulation's success.

The Austrian left-wing MEP was one previously one of those most worried about the regulation creating exactly the opposite of net neutrality.

He said Berec's guidelines were an “improvement”, but that it would have been more robust if the legal text itself was more clear.

“I am not convinced it will hold for years,” Reimon told EUobserver.

The European Commission last year proposed to upgrade Berec to an EU agency in which it had more influence.

Although the plan seems doomed to fail because of a lack of support among member states and the EU parliament, it highlighted Reimon's concerns.

“When we change the structure of Berec, they might change the guidelines,” he said.

Last week, the new head of the Federal Communications Commission (FCC) in the United States showed that acquired rights can be removed.

The Trump-appointed FCC chairman, Ajit Pai, said in a speech on 26 April he would reverse net neutrality rules agreed under president Barack Obama, and “return to the light-touch regulatory framework that served our nation so well”.