April 14th, 2016
By: Shangjun Tang
Network Neutrality (or Net Neutrality) is the principle that all network traffic should be treated equally, without discrimination based on the content of the transmission.[1] The US has already adopted rules on Net Neutrality.
As we consider the topic of surveillance this week, this blog post considers the topic of Net Neutrality. Although the US already has Net Neutrality rules,[2] the aim of this post is not to consider the US framework. Instead, I will consider the European position to see how European regulators are approaching this issue.
On January 13, 2016, the Committee of Ministers of the Council of Europe adopted a recommendation[3] (“Recommendation”) that called upon member states to embrace the principle of Net Neutrality when formulating their national laws. Amongst other aims, the recommendation sought to safeguard freedom of expression, and the privacy of internet users. A brief summary of the recommendations is set out below.
The explanatory text of the Recommendation sets out how Internet Service Providers may, inter alia, filter or censor out content that is unlawful or objectionable. The Committee of Ministers considered that this impinged upon the right to private life, and the right to free expression, both of which are guaranteed by the European Convention on Human Rights (“ECHR”), as well as various other European laws.
As a general principle, the Committee of Ministers affirmed that “Internet users have the right to freedom of expression, including the right to receive and impart information, by using services, applications and devices of their choice.”[4] These rights should not be discriminated against on any grounds.[5]
To this end, any internet traffic management can only be undertaken within a very narrow and limited scope. Specifically, it can be done only to (1) comply with an order from a court or a regulatory authority; (2) preserve network integrity and security; or (3) prevent or address network congestion.[6]
More pertinent for our purposes are the recommendations concerning privacy. In this regard, the Committee of Ministers asserted that “[t]he use of Internet traffic management techniques that are capable of assessing the content of communications is an interference with the right to respect for private and family life.” Any such use must be consistent with Art 8 of the ECHR[7], and must be reviewed by a competent authority within the European Member State to ensure compliance.
EU member states have a responsibility to ensure that their ISPs are in full compliance.
The Recommendation per se is not binding law. Instead, it is a guide formulated under the auspices of the Council of Europe on how each Member State should develop its own legal provisions on this matter. Nevertheless, such recommendations give a good insight into how European law on Net Neutrality is likely to develop in future.
[1] https://www.fcc.gov/general/open-internet
[2] On February 26, 2015, the FCC adopted Open Internet Rules which were “designed to protect free expression and innovation on the Internet and promote investment in the nation’s broadband networks.”[2]
[3] Recommendation CM/Rec(2016)1 of the Committee of Ministers to member States on protecting and promoting the right to freedom of expression and the right to private life with regard to network neutrality, https://wcd.coe.int/ViewDoc.jsp?p=&Ref=CM/Rec(2016)1&Language=lanEnglish&Ver=original&BackColorInternet=C3C3C3&BackColorIntranet=EDB021&BackColorLogged=F5D383&direct=true
[4] Ibid at 1.1.
[5] Ibid
[6] Ibid at 2.2.
[7] Art 8 of the ECHR provides:
Right to respect for private and family life
- Everyone has the right to respect for his private and family life, his home and his correspondence.
- There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.