Member Article

Should the internet be free and open, with all internet traffic treated equally and no restrictions on transmitting content regardless of its type or size (so called 'net neutrality')?

That is the view taken by Dutch lawmakers, who have finally approved a new piece of legislation to force internet service providers (ISPs) to do just that. 

Dutch courage

In approving the new law, the Netherlands has become the first nation in Europe to introduce legislation to prevent ISPs from blocking or charging customers for their rivals’ content. There are limited exceptions to this rule, for example slowing down content is permitted if this is done to deal with internet traffic congestion or to preserve network integrity. 

The decision has caused commentators to wonder whether it is even likely to be enforceable.  Who will moderate and regulate an ISP’s activities and how will this be done? In defence of the legislation Dutch deputy prime minister Maxime Verhagen described ‘the blocking of services or the imposition of a levy [as] a brake on innovation,’ according to a report carried in the New York Times. 

It is a debate which is being had all over the world, with Chile leading the way and introducing legislation requiring net neutrality in May 2011. In the USA, fierce debates have raged between politicians, with allegations of Orwellian style ‘Big Brother’ interference in free speech. The House of Representatives finally rejected proposed legislation to introduce net neutrality in April, but the debate continues. It would not be surprising if there were continued attempts to legislate for net neutrality. 

European perspective

The Council of Europe (CoE) actively supports the idea of net neutrality and has created a set of draft principles in relation to governance of the internet which state that ISPs must not prioritise content.

Key within the principles is the concept that users should have the widest possible access to ‘internet-based content, applications and services of their choice’.

The CoE goes on to say that ISPs should not use discriminatory traffic management policies whilst still meeting international law requirements on freedom of expression. Understandably, ISPs find this a difficult message, as it is hard to align this concept against an ISP’s right to make money from providing content at different rates!

UK net law on the horizon?

Ofcom published a paper in June 2010 designed to promote discussion on network traffic management. The UK government’s stance to date, however, has been that ISPs should be free to prioritise traffic as they like, so long as customers are informed. 

It remains to be seen whether the UK will introduce legislation in the future, but with the European Commission monitoring the process to see if customers are being given a fair deal, it seems the issue could soon be forced if the EC chooses to enforce network traffic management. 

What do ISPs say?

ISPs have stated that they need to ‘manage’ certain traffic due to some users using the bandwidth more heavily (for example by downloading games or file-sharing, which can slow down the network for other customers). In addition, they also give faster and easier access to content provided by companies that have a deal with that ISP and have paid for better connectivity. Slowing down connectivity, blocking content or levying a charge on the customer if the content is from a competitor can all result in revenue streams for ISPs. 

ISPs argue they should be able to charge heavy bandwidth users more in order to have quicker access to that content; ISPs threaten that if neutrality laws are passed, customer subscription prices may rise.

So where does this leave us?

The intense debates relating to net neutrality are unlikely to stop any time soon. There will always be tension between legislators pushing for fairness and ISPs looking for ways to maximise profit.

It remains to be seen whether the Netherlands have begun to pave the way for net neutrality, or whether ISPs will have a strong argument against it should the new Dutch legislation result in a rise in subscription prices for consumers.