Net neutrality looks doomed in Europe before it even gets started

Here come more leaks, and more reasons to suspect that the European Union is not going to get the hard-won net neutrality law it seemed likely to get just months ago.

After last week’s letter from new European Commission chief Jean-Claude Juncker to his commissioners, suggesting that former digital agenda commissioner Neelie Kroes’s “Telecom Package” will be pulled and started again as a “Digital Single Market Package”, digital rights group EDRi has published documents that appear to show the neutering of that legislative package’s net neutrality provisions.

A quick recap on how this all works: Commissioner Kroes came up with the Telecom Package, which also proposed the abolition of intra-EU roaming fees and the harmonization of radio spectrum across the union. The package then went to the European Parliament, which strengthened the net neutrality provisions by giving strong definitions to both the term “net neutrality” and the kinds of “specialized services” that carriers would be able to treat differently from normal internet services – the point being that a carrier couldn’t just decide that [company]Netflix[/company], for example, is a “specialized service” and treat it differently from other video-streaming services.

The final stage of the legislative process involves negotiations between the Commission and the Council of the European Union, which includes representatives of all the member states. The Council has a rotating presidency, and at the moment Italy has it. The leaked documents EDRi published on Thursday — and EDRi has been reliable on this stuff in the past — come from the Italian presidency, which sent them to delegations from the member states for comment.

Gone: The definition of “net neutrality”. Gone: The definition of “specialized services”. Instead, the documents say that discussions are “converging” around a “principles-based approach, in order not to inhibit innovation and to avoid technological developments making the regulation obsolete.”

Specialized services would be neither regulated nor prohibited. Traffic management measures would get “necessary flexibility” making it possible to “block, slow down, alter, degrade or discriminate against” content, applications or services if there was a court order. That one probably comes from the U.K., which is increasingly censoring what its citizens can see online.

“Most member states have confirmed their support to EU rules on net neutrality set at a level of principles, leaving more scope for Berec [the Body of European Regulators for Electronic Communications] guidelines and national enforcement,” an annex makes clear, adding: “Instead of a definition of net neutrality there could be a reference to the objective of net neutrality.”

As EDRi noted in its analysis, the practice of zero-rating content – carriers providing specific content for free while billing for other similar content – would be permitted. That would already have been allowed in the version passed by Parliament though, so not much of a change there.

In addition, the documents suggest that Kroes’s beloved roaming reforms are up for revision too, and the spectrum harmonization stuff will be “simplified” due to member states’ concerns.

So, if this is all the member states would agree to, then Europe is looking at a gutted net neutrality law, with no meaningful enforcement. It’s worth noting that this version would also lead to much less harmonization across member states. That’s in keeping with the anti-EU sentiment of the day, and it might also explain why the arch-federalist Juncker, so keen on a single digital market, would rather tear it all down and start again.

Either way, it looks like European net neutrality is sunk for now. I really hope I’m wrong on that.

PS — In a public Q&A session this afternoon, new digital economy commissioner Günther Oettinger (who bailed on the session after a surprisingly short 40 minutes) said: “Our proposal for internal market telecommunications legislation is aimed at clearly defining what is meant by network neutrality.” In the context of the Council removing such clear definitions from the Telecom Package, this may again suggest that the compromise will be torn up and the legislative process rebooted.