The EU negotiators' proposed new rules on net neutrality – reached in the early hours of Tuesday morning – have caused serious concerns among digital rights activists, who cite loopholes and vagueness.
After three months of to-ing and fro-ing between member states and the European Parliament (a situation described by parliament insiders as less “give and take” and more “take, take, take” by the national negotiators) a last-ditch deal was pushed through at 3am.
Although the phrase “net neutrality” has not appeared at all in recent leaks of the EU's Telecoms Package, it does now claim to “safeguard equal and non-discriminatory treatment of traffic” on the internet.
Net providers would be banned from blocking or throttling internet speeds for certain services for commercial reasons.
However, due in large part to the intransigence of national negotiators, several loopholes have been left open. For example, internet traffic can be managed to deal with “temporary or exceptional congestion”, but there is no explanation as to what constitutes "temporary" or "exceptional".
If such traffic management measures are needed, they must be "transparent, non-discriminatory and proportionate, and may not be maintained longer than necessary.”
The door has also been left open for operators to offer so-called specialised services (essentially better quality and faster speeds) on the condition that this does not have an impact on general internet quality.
Dutch MEP Marietje Schaake (Liberals and Democrats) had pushed for “clearer language that unequivocally safeguards net neutrality in Europe [and] the compromise reached is a watered down version of the strong ambitions of the European Parliament."
"We need to make sure Europe can lead in safeguarding the open internet, fostering innovation, and ensuring fair competition in the digital single market," she added.
Campaigners fear vague language around specialised services will lead to a two-tier internet of slow lanes and fast lanes. The "EU institutions have agreed on a contradictory text that does not deliver net neutrality", said Estelle Massé, of digital rights group Access.
"With rules protecting access to the internet and others handing over the future of the internet to telcos, it will be up to courts to decide whose interests prevail,” added Massé.
Although more positive about the deal, James Waterworth, of industry NGO the Computer and Communications Industry Association, also said the real worth of the law would be in its interpretation: "The agreement is right to allow for traffic management and specialised services, but also right to prohibit discrimination and ensure that traffic is treated in a non-discriminatory manner."
"However, the rules will only be worth something if effectively supervised by national telecoms regulators. This will be the critical next step," he added.
Meanwhile, the inventor of net neutrality as a concept, Tim Wu, is concerned. He told The Register that it would be to the detriment of Europe to allow a two-tier system, as the only winners would be the big US internet giants. In fact, he added, no agreement would be better than a bad agreement.
But it appears that the member states and the European Commission wanted a deal at any cost.
Joe McNamee, director of European digital rights group EDRi, described the agreement as chaotic and substandard.
“What is the point of agreeing to adopt legislation that makes the legal situation less clear than it was before? Now we have text which could mean almost anything,” he said.
However, trade association ITSPA, which represents both network operators and over-the-top providers, was pleased with the deal. It had previously expressed concerns that the European Parliament was leaning towards a net-neutrality position that could have prevented lucrative specialised services deals.
“It’s great that the EU is going to block the blockers," said ITSPA chairman Eli Katz. "We’ve campaigned for years for action to stop internet services like VoIP being blocked by a few fixed and mobile operators who can’t stand any competition to their own services.”
So far, only the core text of the law has been agreed, and negotiators have yet to finalise the explanatory notes (known as recitals) which may add some clarity.
Sources say this will be done “in the next few days” – none of the EU institutions could be more precise.
After that, the text of the Telecoms Single Market regulation will have to be formally approved by the European Parliament and the Council of member states, probably before the end of the year. ®