[governance] Protecting Human Rights through Network Neutrality

[Luca Belli]

Dear all,


I would like to share with you the report on “Protecting
Human Rights through Network Neutrality” that I drafted together with
Matthijs van Bergen for the Council of Europe. One month ago, we presented this
report to the CoE Steering Committee on Media and Information Society (CDMSI),
which agreed to use it as a basis for the work of the Committee of Experts on Cross-Border Flow of Internet Traffic
and Internet Freedom (MSI-INT) with regard to the elaboration of a CoE Resolution on Network Neutrality. 


Below the executive
summary of the Report. Comments are more than welcome! 

Best regards,



Luca

 

Executive summary

1.      
This report was drafted with
the goals to (i) provide deeper insight into how net(work) neutrality relates
to human rights and (ii) suggest a policy and legal approach aimed at granting
the full enjoyment of Internet users’ fundamental rights and freedoms through
an open and neutral Internet environment, while simultaneously promoting
unrestrained innovation and economic growth in the digital economy.[1]

Network
neutrality is a key enabler of human rights

2.      
Network neutrality prescribes
that Internet traffic shall be treated without undue discrimination,
restriction or interference, so that end-users[2]
enjoy the “greatest possible access to Internet-based content, applications and
services of their choice, whether or not they are offered free of charge, using
suitable devices of their choice”.[3]


3.      
On the one hand, network
neutrality is instrumental to enable any Internet user to offer and enjoy
online content, applications and services through any Internet-connected device
of their choice, without having to conclude agreements with each Internet
Service Provider (“ISP”) [4] of each
intended recipient, and all ISPs in between. On the other hand, net neutrality
ensures that Internet-users’ choices for certain online content, applications,
services and devices are not unduly influenced by discriminatory delivery of
Internet traffic. As such, net neutrality enables self-determination and facilitates
the openness of the Internet, by deflating market and institutional barriers to
enter into the ‘free market of ideas’ and to participate on equal footing in
economic, social and political activities.

4.      
In our current information
society, the ability to freely receive and impart ideas and information and to
fully participate in democratic life is truly reliant on the nature of one’s
Internet connection.[5] By ascribing
to users the ability to choose freely how to utilise their Internet connection,
without undue interferences from public or private entities, network neutrality
directly contributes to the effective enjoyment of a range of fundamental
rights, such as Internet users’ freedom of speech and right to privacy,[6]
as well as the promotion of a diverse and pluralistic media-landscape, while
unleashing a virtuous cycle of innovation without permission. 

5.      
For such reasons the Committee
of Ministers of the Council of Europe adopted the 2010 Declaration on network
neutrality, underlining its commitment to this fundamental principle,[7]
while in 2012 the Internet Governance Strategy of the Council of Europe urged
the development of “human rights policy principles on “network neutrality” to
ensure Internet users have the greatest possible access to content, applications
and services of their choice as part of the public service value of the
Internet and in full respect of fundamental rights”[8].

Network
neutrality has come under threat

6.      
Certain Internet traffic
management (“ITM”)[9] techniques
currently allow ISPs to block, downgrade or prioritise specific data flows.
Research has shown that ITM is frequently deployed in order to block or
downgrade specific Internet traffic relating to online services which compete
with other services offered by the ISPs.[10]
Such practices compromise end-users’ capacity to freely receive and impart
information online using applications, services and devices of their choice,
and jeopardise the open and neutral character of Internet architecture.
Furthermore, some large European ISPs have made clear through the media and
other avenues, such as shareholders' meetings and industry associations, that
they intend to depart from neutral Internet access provision, in order to
discriminate and prioritise specific data-flows and monetise the value that
specific online applications, services and content (conceived by Internet
users) present to their subscribers.[11]  

7.      
This illustrates that existing
European approaches based purely on economic and competition-law principles
have thus far failed to fully enforce the network neutrality principle, even
though European telecommunications markets have generally been considered
relatively competitive.[12]
Indeed, just as the right to vote alone is not enough to ensure freedom in a
constitutional democracy, the possibility to switch providers – which may be
seen as  the right to ‘vote (an ISP) with
your feet’ – is not enough to adequately ensure the enjoyment of users’
freedoms on the Internet.

8.      
Therefore, it seems necessary
to query what kind of policy and legal approach would be best suited to enforce
the network neutrality principle and safeguard the public-service value of the
Internet.

A
recommended policy and legal approach to network neutrality

9.      
In this report we propose a
model framework on network neutrality which all Council of Europe member states
can adopt in their legal systems. Importantly, the framework is directly
inspired by article 10 ECHR, which ensures the right to receive and impart
ideas and information without restriction or interference, unless such
interference is strictly necessary for and proportionate to a legitimate aim.
Since the goal is to ensure that Internet traffic shall be transmitted without
undue discrimination, restriction or interference, whether by public or private
actors, the format of article 10 ECHR lends itself very well to be transposed
into a legal framework guaranteeing network neutrality.









[1]     With respect to the goals
of this report, it should be noted that a number of participants to the Council
of Europe Multi-Stakeholder Dialogue on Network Neutrality and Human Rights – a
conference organised by the Council of Europe on 29-30 May 2013 – highlighted
the interest of a policy framework aimed at safeguarding net neutrality.  See: Belli L., Council of Europe Multi-Stakeholder Dialogue on Network Neutrality and
Human Rights, Outcome Paper, June 2013. The concerns expressed during this
conference led the Council of Europe to commission this report.





[2]     In this report we speak of
Internet (or end-) users rather than consumers. This in order to reflect the
idea that consumers are solely or primarily economic actors in a market
setting, whereas ‘Internet users’ should be regarded as autonomous participants
of an ‘information society’, connected through the Internet, with interests
that range beyond the merely economical, including also social, political and
other interests.





[3]     Council of Europe, 2010
Declaration of the Committee of Ministers on Network Neutrality, para. 4.  





[4]     The term “Internet service
provider” (ISP) is used to denote a legal person providing Internet
connectivity to its customers. The term ISP also encompasses Internet transit
providers – i.e. those entities that
provide connectivity to various ISP, allowing them to interconnect their
networks – but in this report, it does not include hosting providers and
providers of online services, applications and content.





[5]     See: Council of Europe,
Recommendation CM/Rec(2007)16 of the Committee of Ministers to member states on
measures to promote the public service value of the Internet. 





[6]     Some even suggest a notion
of net neutrality as a human networking right sui generis. See: Berners Lee T.,
Long live the web, Scientific
American 22 November 2010; https://en.wikipedia.org/wiki/Tim_Berners-Lee.





[7]     See: Council of Europe,
2010 Declaration of the Committee of Ministers on Network Neutrality, para 9,
which also suggests further exploring network neutrality “within a Council of
Europe framework with a view to providing guidance to member states”. This suggestion
has been reiterated by several participants to the Multi-Stakeholder Dialogue
on Network Neutrality and Human Rights. See: Belli L., Council of Europe Multi-Stakeholder Dialogue on Network Neutrality and
Human Rights, Outcome Paper, op.cit.





[8]     See: Council of Europe Internet Governance, Council of Europe Strategy 2012-2015,
CM(2011)175 final, 15 March 2012, paragraph I.8.e.





[9]     According to BEREC ITM is:
“all technical means used to process through the network traffic sent or
received by end users, including both application-specific and
application-agnostic traffic management. BEREC, A view of traffic management
and other practices resulting in restrictions to the open Internet in Europe,
29 May 2012, p. 4.





[10]    Relating to Europe, see:
BEREC, op. cit. Relating to the USA, see: FCC 10-201, Report and order on the
open Internet 2010, paragraph 14.





[11]    E.g. KPN Investor Day,
London 10 May 2011; ETNO paper on Contribution to WCIT ITRs Proposal to Address
New Internet Ecosystem. In response, see e.g.:
BEREC, BEREC’s comments on the ETNO proposal for ITU/WCIT or similar
initiatives along these lines, BoR (12) 120 rev.1, 14 November 2012. 





[12]    It should be stressed that,
at the EU level, the Universal Service Directive (i.e. directive 2002/22/EC) has
strengthened consumer protection, fostering better consumer information
pertaining to supply conditions and tariffs in order to allow them to more
easily switch providers, thus promoting competition in the electronic
communications markets. However, as pointed out by BEREC, several types of
discriminatory practices are particularly widespread at the European level.
See: BEREC, A view of traffic management and other practices resulting in
restrictions to the open Internet, op.
cit. Furthermore, it has been noted by the Netherlands Bureau for Economic
Policy Analysis that “one cannot be optimistic about the intensity of
competition [in the telecoms sector]. Moreover, if providers make their
networks “less neutral” by implementing network bias practices, the intensity
of competition decreases further. ” See: CPB response of 23 September 2010 to
the public consultation on Internet and net neutrality. 







Luca Belli
PhD Candidate in Public Law
CERSA, Université Panthéon-Assas, Paris 2
Dynamic Coalition on Network Neutrality 

 		 	   		  
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