​Net Neutrality? No Thanks, We’re European

The US has stepped up to protect net neutrality, but European nations are pushing to do the opposite.

That may come as a surprise: European lawmakers haven't been afraid to regulate the tech industry in the name of consumer rights, notably forcing Google to edit search results to meet its "right to be forg​otten" rule. But when it comes to net neutrality, one branch of the EU has managed to irritate both net neutrality activists and telecoms representatives with plans that would allow for some traffic to be prioritised.

Those proposals come via the Council of the European Union, made up of leaders of the EU's 28 member states and one of a trio of main legislative bodies in the EU, alongside the Commission and the Parliament—and its proposals disagree with proposals from the latter two that seek to fully protect net neutrality. The Council and Parliament must agree for the rules to become law.

The Council's proposed rules would let ISPs throttle traffic in limited circumstances, and would allow some data to be prioritised. "Blocking or slowing down specific content or applications will be prohibited, with only a limited number of exceptions and only for as long as it is necessary," the Council said in a st​atement. "For instance, customers may request their operator to block spam. Blocking could also be necessary to prevent cyber attacks through rapidly spreading malware."

That agrees with what some European tech leaders have argued for: Nokia's CEO Rajeev Suri said at Mobile World​ Congress this week that some data is more important than others and should get priority, such as driverless cars or connected healthcare systems.

But such exceptions haven't been defined well enough, activists argue. "The text adopted [by] the EU Council is so incoherent and meaningless, I'm not sure that it deserves to even be called a 'proposal,'" Joe McNamee, executive director of advocacy group European Digital Rights (EDRi), told me. "It is a salad of contradictory, incoherent, inconsistent provisions."

His views were echoed by MEPs (Members of the European Parliament). "Current proposals are ambivalent, and can lead to commercial practices that go against consumer interests, against innovative start-ups, and against fair competition in the digital economy," said Marietje Schaake, a member of Parliament and spokesperson for the Liberals and Democrats for Europe Group.

The Council's plans not only diverge from the Parliament's proposal, but from American laws. Last week, the US Federal Commu​nications Commission took a much stronger stance to protect net neutrality, declaring broadband a public utility and banning ISPs from throttling or prioritising traffic for cash.

McNamee said the Council plans were the "exact opposite" of the US rules. "The FCC is trying to create a coherent, predictable open environment for preserving the open character of the internet—for the good of citizens, businesses and innovation. The EU Council is trying to protect a small number of former monopoly telecoms operators."

All that said, many large European tech firms aren't that fond of the EU Council's plans. ETNO, the European Telecommunications Network Operators' Association, includes members such as Deutsche Telekom, Orange and Telefonica—and even it cal​led on the Council to be more "ambitious" and do more to protect an open internet. "Any future regulation must recognise how networks function: we need balanced rules on traffic management as well as measures that allow the development of specialised services and innovative offers."

The EU being the massive bureaucracy that it is, the issue remains undecided and will for some time: the Council and Parliament will now have to come to an agreement on net neutrality, and once they do, the law comes into power from 30 June 2016.

"The next stage in the legislative process is a negotiation between the EU Council and the European Parliament," said McNamee. For the rules to be adopted, both must approve the law. "The Parliament has already taken a strongly pro-net neutrality stance. What I would like is that the Parliament will prevail in the negotiations."