Christopher T. Marsden, Communications Law Prof, University of Essex, UK
Network Neutrality: European Law?
Common carriage is fair reasonable and non-discriminatory treatment of content whatever its nature. Eli M. Noam predicted in 1994 the end of common carriage, though the debate is much older. Every time there has been a debate on monopolies on the “carrying” nature of some specific infrastructures, the debate on common carriage has rised: inns and boats, railways, telegraphs, then modern networks, etc.
Network neutrality debate began as we know it in 1999 due to mergers of cable TV and broadband companies, and sparkled by Lessig and Lemley FCC submission The end of End-to-End.
Internet, as an open network, was regulated by common carriage, and some general rights were granted to it to avoid discrimination:
- Interoperability
- Interconnection
- Privacy
- Interception
There actually are a number of actual and considered practices that are about to — or already have — cross the red line of net neutrality, like different tariffs according to usage, different speeds, etc.
So far we have a Net Neutrality ‘lite’, with some decisions in Canada, the US or Europe, with ‘non-discrimination’ presumption subject to national security, law enforcement, public safety, etc. and a ‘reasonable network management’. And we will negotiate Net Neutrality ‘heavy’ about different speed rates, special and managed services, etc.
The problem with the many backdoors that the exceptions add to ISP regulation imply, in practical terms, that there are many possibilities for ISPs not to be neutral at all.
Presently, Chile (2010), Finland (2010) and the Netherlands (2011) have issued Net Neutrality specific laws, while Canada and Norway are on their way to it.
In Europe, we had a declaration to protect Net Neutrality and no will to implement nothing but just delaying it forever (despite officially being a debate and a formal proposal for a directive).
Discussion
Q: What can policy-makers do? A: The ECOSOC is actually doing research on Net Neutrality. Civil society is also working hard, as it did at the OECD high-level meeting on net neutrality. There has to be a serious negotiation, especially in matters as censorship and what is the acceptable level of censorship that we want.
More information
- Neutralidad de la Red: Historia, regulación y futuro, by Christopher Thomas Marsden.
