EU Regulation on open internet access (Net Neutrality)
Briefing note for Members
On 26 November 2015, the European Union published Regulation (EU) 2015/2120 laying down measures concerning open internet access . This Regulation aims to establish common rules to safeguard equal and non-discriminatory treatment of traffic in the provision of internet access services and related end-users’ rights. It aims to protect end-users and simultaneously to guarantee the continued functioning of the internet ecosystem as an engine of innovation.
The Regulation aims to protect end-users rights in terms of the content they can access and the ‘neutrality’ of their internet connection. The Regulation requires providers of internet access services to treat all traffic equally when providing internet access services. In particular it states: ISPs shall not block, slow down, alter, restrict, interfere with, degrade or discriminate between specific content, applications or services, or specific categories thereof, unless this interference can be considered as ‘reasonable traffic management’ or if it is allowed under the exceptions mentioned in the Regulation. The voluntary blocking of child sexual abuse material by ISPs could therefore be potentially affected by the ‘net neutrality’ provisions in the Regulation if this is considered not to be included in the exceptions.
The original proposal limited the right of end-users to access lawful online content and clearly excluded initiatives to tackle illegal material – including the voluntarily blocking of child sexual abuse material - from its scope. However, after lengthy and often closed-door negotiations the text was changed and (unintentionally) created more ambiguity.
Two issues now arise: 1) Is traffic management (blocking) to prevent users from accessing illegal material included in the scope of the Regulation? 2) If actions against illegal material are included in the scope of the Regulation, is the voluntary blocking of child sexual abuse material based on the IWF URL list allowed under the existing exceptions?
What does the text say?
The most relevant parts of the text for the IWF are Recitals 6 and 13 and the relevant exception in Article 3(a).
The Recitals state that the Regulation does not seek to regulate the lawfulness of the content, applications or services, nor does it seek to regulate the procedures, requirements and safeguards related thereto. The recitals also state that situations may arise in which ISPs interfere with their traffic as a measure ensuring compliance with EU or national legislation.
Recital (6) End-users should have the right to access and distribute information and content, and to use and provide applications and services without discrimination, via their internet access service. The exercise of this right should be without prejudice to Union law, or national law that complies with Union law, regarding the lawfulness of content, applications or services. This Regulation does not seek to regulate the lawfulness of the content, applications or services, nor does it seek to regulate the procedures, requirements and safeguards related thereto. Those matters therefore remain subject to Union law, or national law that complies with Union law.
Recital (13) Situations may arise in which providers of internet access services are subject to Union legislative acts, or national legislation that complies with Union law (for example, related to the lawfulness of content, applications or services, or to public safety), including criminal law, requiring, for example, blocking of specific content, applications or services. In addition, situations may arise in which those providers are subject to measures that comply with Union law, implementing or applying Union legislative acts or national legislation, such as measures of general application, court orders, decisions of public authorities vested with relevant powers, or other measures ensuring compliance with such Union legislative acts or national legislation (for example, obligations to comply with court orders or orders by public authorities requiring to block unlawful content) […]
The exception in Article 3 (a) allows for traffic management if this is a measure complying with - and giving effect to - existing legislation. This could potentially refer to the existing legislation regarding the illegality of accessing and distributing child sexual abuse material or EU legislation which allows Member States to block child sexual abuse material. Article 3 Providers of internet access services shall not engage in traffic management measures […] except as necessary in order to: Comply with Union legislative acts, or national legislation that complies with Union law, to which the provider of internet access services is subject, or with measures that comply with Union law giving effect to such Union legislative acts or national legislation, including with orders by courts or public authorities vested with relevant powers.
The different views
A number of stakeholders have raised concerns regarding the lack of clarity of the Regulation. A number of people have also argued that this text would result in the need for the UK and other European countries to provide a legal basis for blocking child sexual abuse material so that the blocking ‘complies with legislation’– making it no longer possible for ISPs to voluntarily block child sexual abuse material based on the IWF URL list.
In addition, some also raised concerns that the IWF is (obviously) not a court but also not a ‘public authority’ and therefore the IWF URL list does not provide a sufficient basis for ISPs to block child sexual abuse material. The IWF has consistently raised its concerns about potential ambiguity with EU and UK decision-makers and has repeatedly asked for clarification from the legislators. The feedback received from the legislators has been as follows: European Parliament: The IWF has worked closely with Members of the European Parliament involved in the dossier and the negotiations. They stated on numerous occasions that the Regulation is not intended to regulate how ISPs or Member States tackle illegal material online. Council of the European Union: The IWF has discussed this issue repeatedly with the EU Presidency at the time of the negotiations. They expressed their support for the work of the IWF and claimed our efforts to combat child sexual abuse material would be safeguarded. European Commission: On the record – European Commission spokesperson Nathalie Vandystadt, in charge of the Digital Single Market stated: “Under the new rules the UK authorities will be able to continue to block images illegal under UK law – or require or encourage service providers to do so – effectively in the same way they do now. This is because the net neutrality rules agreed by the European Parliament and Member States contain exceptions to do so.” European Commission experts say: “The first EU-wide rules on net neutrality establish the principle of equal and non-discriminatory traffic management and prohibit any blocking, throttling, degradation or discrimination of internet traffic by internet service providers. However, this general prohibition is subject to exceptions – one of them is about compliance with Union or national legislation related to the lawfulness of content or with criminal law, or with measures implementing this legislation. Self-regulatory schemes which give effect to EU law, for example under the Child Protection Directive, would be covered by the exception.” “Under EU rules (e-Commerce Directive), internet service providers have the obligation to take measures against sites containing illegal content such child abuse images when they are alerted to the presence of such content.” UK Government (DCMS was involved in the negotiations on behalf of the UK) Ed Vaizey Minister of State (Culture Media and Sport) (Digital Industries):
“My Department supports the blocking of access to child sexual abuse material by industry and we are actively seeking to ensure that all European regulation, including the electronic communications framework - which is currently under review - does not impede this. The Government’s primary concern during negotiations on the Connected Continent (or Telecoms Single Market) Regulations was that the Internet Watch Foundation's (IWF) ability to block access to illegal images of child abuse was protected, and we are confident we have ensured this. Going forward, we will continue with our aim to ensure any future European regulation allows the blocking of such content.”
It therefore seems clear that the intention of the legislators was not to prevent ISPs to take steps to prevent the distribution of illegal material, including through voluntary initiatives.
BEREC, the ‘Body of European Regulators for Electronic Communications’ has been mandated to issue guidelines for National Regulators. They launched a public consultation on their draft Guidelines on the Implementation by National Regulators of European Net Neutrality Rules and issued their final guidelines on 30 August 2016.
To answer the issue of whether blocking illegal material is included in the scope of the Regulation, BEREC references Recital 6 and the fact that the Regulation doesn’t seek to regulate the lawfulness of the content. BEREC, however, doesn’t refer to the mention of the Regulation not seeking to regulate the ‘procedures, requirements and safeguards related [to the lawfulness of the content]’.
In response to Recital 13 and the exception in Article 3 (provided above), BEREC ‘clarifies’ that:
81. If an ISP applies traffic management measures which cannot be regarded as reasonable, NRAs should assess whether an ISP does so because it has to do so for legal reasons, namely to comply with the legislation or measures by public authorities specified in that exception.
82. […] such legislation or measures must comply with the requirements of the Charter of Fundamental Rights, and notably Article 52 which states in particular that any limitation of the rights and freedoms recognised by the Charter must be provided for by law and respect the essence of those rights and freedoms.
The actual text of Recital 13 refers to the possibility to interfere with internet traffic in order to comply with legislation or (‘in addition’) through measures that comply with legislation or other measures ensuring compliance with such legislation. The reference to court orders or public authorities is provided an example.
The text of the exception in Article 3 allows traffic management in order to comply with Union legislative acts to which the provider of internet access services is subject, or with measures that comply with Union law giving effect to such Union legislative acts or national legislation. The text explains this ‘includes’ (but is therefore not necessarily limited to) orders by courts or public authorities vested with relevant powers BEREC’s analysis whereby it only refers to legislation or measures by public authorities seems therefore more restrictive than the actual text of the Regulation.
In addition to its guidelines, BEREC also published further information in a report following the public consultation on their draft guidelines. The report states:
“Another suggestion from some civil society respondents and ISPs was for NRAs to support ISPs blocking content recognised as illegal under Union law or national legislation (as also referred to in paragraph 81 / paragraph 78 of the draft Guidelines), on a voluntary or self-regulatory basis, making reference to Recital 13. For the specific case of child sexual abuse content, a reference to Directive 2011/92/EU of 13 December 2011 combating child sexual abuse was suggested. It was also suggested that NRAs should also support the ability of ISPs to filter spam at any time.”
“With regard to some other requests to include additional references, in particular to content recognised as illegal, BEREC considers that these matters are sufficiently covered elsewhere, in particular under Article 3(3) (a) and the corresponding section of the Guidelines. BEREC also notes that these issues would require an approach based on legislation, rather than being voluntary or self-regulatory.”
Conclusion Regulation (EU) 2015/2120 laying down measures concerning open internet access continues to raise questions about the role of ‘self-regulation’ and the powers of ISPs to voluntary block illegal content on their networks.
The concerns raised above relate to the use of IWF’s URL list, but potentially also to lists provided by other organisations or actions to deal with other types of content. The Regulation as well as the BEREC guidelines do not seem to provide a clear answer to these concerns.
In the case of the fight against child sexual abuse material, EU legislation explicitly states that Member States may block child sexual abuse material and national legislation clearly determines the illegality of distributing child sexual abuse content.
We hope future interpretations of the Regulation might clarify the text and confirm that ISPs are correct to continue to prevent their customers from stumbling upon known child sexual abuse material.