A free and open Internet. Many of us take it for granted, the ability to access any website at any time, from any device and geographical location. However, what we take for granted might not actually be completely open and free. In 2017 Ajit Pai, chairman of the United States Federal Communications Commission was accused of “killing the Internet” when he reversed previous provisions forbidding Internet providers from blocking or prioritising content.
The ambition to provide a free and open Internet is often referred to as net neutrality. The phrase was coined by the American professor and lawyer Tim Wu back in 2003. Net neutrality basically means that Internet service providers may not promote certain websites, companies or applications before others. The Internet as a platform is to be open and transparent, not subject to commercial interests or other forms of limiting mechanisms.
The question of providing equal and open Internet to all is no doubt a substantial question in today´s society. 30 April 2016 the new Telecom Single Market Regulation (“TSM”) came into force throughout the European Union (“EU”). The regulation aims to establish common rules to ensure a free and non-discriminatory treatment of traffic in the providing of Internet traffic services as well as end-user´s rights. In accordance with the TSM all end-users are entitled to the access and distribution of information and content, to use and provide applications and services regardless of location, origin or destination. Internet providers shall treat all traffic equally and may not block, limit, disrupt or discriminate any specific content. To monitor, advice and guide the member states the Body of European Regulators of Electronic Communications (“BEREC”) has been appointed. BEREC gathers all the member states national regulatory authorities and provides a thorough knowledge as to the management of electronic communication throughout the EU.
In January 2017 the Swedish telecom- and internet service provider Telia Company AB (“Telia”) was issued a decision notice by the Swedish Post and Telecom Authority (“PTS”) to cease traffic management measures taken in relation to some of their customers. Telia had made it possible for end-users to continue using certain applications such as Facebook, Instagram and Spotify even after their subscribed data volume had been consumed, a phenomenon also known as zero rating. PTS´s injunction gave Telia 30 days to end all measures, but Telia appealed to the Swedish Administrative Court of Appeal (sw. Kammarrätten i Stockholm) saying that this would lead to substantial damages for both Telia and the end-users. The court stated that the injunction could be inhibited since the outcome, should the issue be brought to court, was uncertain. Telia also called for a preliminary ruling at the European Court of Justice as to the interpretation of art. 3.3 of the TSM and Telia´s traffic management measures. The court rejected the request.
So what has happened since?
Telia then appealed PTS´s decision to the Swedish Administrative Court (sw. Förvaltningsrätten i Stockholm) claiming the injunction should be repealed in full and not just inhibited. The Administrative Court delivered verdict 28 September 2018 through an in-depth judgment with regards to the TSM. Telia claimed that PTS had not performed an individual examination of the different kinds of services provided to end-users, and that the services did not in fact constitute such traffic management measurements that are prohibited according to the TSM. Lastly Telia claimed that the examination that PTS had performed was so inadequate that the injunction should be repealed by that fact alone. The court states that traffic management measures are allowed if they are reasonable and open, non-discriminating, proportional and not based on commercial considerations, but based on objectively different demands on the services technical quality for specific categories of traffic. The court also states that there is no legal definition provided to the term traffic management measures but that the TSM requires equal treatment of traffic, and that nothing had been presented to object that Telia´s actions were commercially initiated. As to the examination that PTS had performed, the court states that the relevant aspect here is the traffic management measures, and that there is no reason to assess these measurements differently within the frames of the case. Telia´s appeal was rejected in full. Telia have chosen not to appeal the judgment and have accepted the court’s line of reasoning by changing the traffic services.
The court also clarifies that even though the guidelines provided by BEREC are in fact not binding, they do provide substantial information as to the legality of actions and the interpretation of the TSM.
On 28 February 2018 the Portuguese Telecom Regulator ANACOM issued a decision notice towards three Portuguese Internet service providers to change their offers that are in breach with the TSM regulation. These Internet providers had limited the access to Internet by only allowing customers access to a few selected applications such as YouTube and Netflix. Similar to the actions by PTS, ANACOM ordered amendments of zero rating and similar actions within 50 days of the decision.
Insofar, the question of net neutrality, zero rating and traffic management issues have been brought up in several countries across the EU. To name a few of these both Austria, Belgium, Italy and Norway have all faced situations relating to the TSM. However, most of the issues relating to other member states have focused on zero rating actions, whereas PTS put emphasis on the traffic management measures. As for Sweden, mainly Telia and Hi3G (“Tre”) have been in focus for PTS´s supervision. However, Tre have continuously replied to PTS that they will adjust their offers that might constitute a breach of the TSM. Therefore PTS has not initiated any formal decisions against Tre but continues their surveillance.
It remains to be seen how Internet service providers will continue their commercially beneficial efforts to provide different options to end-users as to the access of Internet content, and what effects their actions will have. The EU´s ambition to uphold a single market and well balanced competition between Internet service providers no doubt creates hinders for far-reaching commercially “creative” solutions. However, it seems clear that the EU will not stand for any inequality and non-transparency when it comes to Internet access for end-users, and that the EU continues its efforts in the aims to provide a free and open Internet.