Statement

Net neutrality: Stronger rules needed in US and EU

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ARTICLE 19

07 Nov 2011

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On 20 November 2011, the US Federal Communications Commission’s rules on net neutrality will come into force. While the rules are a welcome attempt at protecting net neutrality, ARTICLE 19 is concerned that they do not go far enough. With the EU set to adopt its own conclusions on net neutrality in early December, ARTICLE 19 calls on the US, the EU, and governments worldwide to implement rules that fully protect universal access to, and openness of, the internet.

The principle of ‘net neutrality’ protects the consumers’ right to access the content, applications, services and hardware of their choice. It is essential for the sharing of information and ideas on the internet. The priniple of net neutrality also requires that Internet Service Providers (ISPs) and governments should not be allowed to use their control of internet infrastrucuture to block content, or prioritise or slow down access to certain applications or services, such as peer-to-peer transmission.

In October 2011, the Federal Communications Commission (FCC) published a set of rules called ‘Formal Complaint Procedures, Preserving the Open Internet and Broadband Industry Practices’, aimed at ensuring net neutrality, and scheduled to come into force on 20 November 2011. Although the FCC approved the Rules on 21 December 2010, they have not entered into effect due to their delayed publication in the Federal Register. A number of legal challenges have been brought against the FCC following the publication of the rules, and therefore implementation of the rules is likely to be further delayed.

The rules espouse three basic principles:  (i) all ISPs must be transparent in their network management practices; (ii) ISPs are prohibited from blocking lawful sites and services; and (iii) fixed broadband providers cannot unreasonably discriminate against lawful network traffic. 

When the rules were first adopted last December, ARTICLE 19 welcomed the FCC’s reaffirmation of the need for an open internet to promote freedom of expression. At the same time, we expressed our disappointment that the rules failed to provide adequate safeguards against discrimination, especially in relation to mobile broadband. We were also concerned that ISPs were allowed to restrict access to content and services for ‘reasonable’ network management purposes.

While ARTICLE 19 believes that the rules are a step in the right direction, they are too weak and inadequate to protect net neutrality. Although the FCC has banned the filtering of ‘lawful’ content, it allows the blocking of ‘unlawful’ websites and peer-to-peer transmission, which could result in the accidental blocking of ‘lawful’ websites and applications based on peer-to-peer technology, such as VOIP. Moreover, the ban on ‘unreasonable’ discrimination is too  limited because the FCC rules only limit the ban to fixed broadband providers, excluding mobile.

The adoption of net neutrality has not been the sole focus of the US. The Council of Europe recently adopted principles for the protection and promotion of net neutrality. In its Declaration on Internet Governance Principles adopted on 21 September 2011, the Committee of Ministers described universal access to the Internet as one of the key objectives of internet governance. In particular, the Committee stressed that traffic management measures could potentially interfere with freedom of expression and therefore had to comply with human rights principles. Following the Council of Europe’s Declaration, the Council of the EU is also set to adopt its own conclusions on the open internet and net neutrality on 13 December 2011.

The fundamental importance of the net neutrality principle for freedom of expression cannot be overstated. ARTICLE 19 urges the EU and other authorities around the world to implement provisions that fully protect net neutrality and go further than the principles laid down by the FCC.

 

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