European Union: Open Internet And Net Neutrality

Last Updated: 5 January 2012

Article by James Walsh, Senior Associate, Telecoms Team and Charlotte Walker-Osborn Head of TMT Sector.

What? Both Ofcom and the European Parliament have recently made recommendations to address the issues of the open internet and network neutrality.

So what? On 17 November 2011 the European Parliament adopted a resolution to keep the internet open and neutral by ensuring that EU telecoms rules are properly enforced as well as calling on the European Commission to monitor internet traffic management practices. Ofcom followed this announcement by publishing a statement on 24 November 2011 setting out its views on the steps it expects internet service providers to take to ensure customers are aware of how internet traffic is being managed on their networks.  The measures do not enshrine net neutrality firmly as a principle of law, but are a good step towards ensuring transparency for consumers about what service they will receive from service providers.

The principles of Net Neutrality

Increased demand for applications and services over the internet has created a challenge for network operators who have a finite amount of capacity that they can provide.  The conundrum facing network operators is whether to invest in additional network capacity and/or how to better manage their existing capacity.  For legacy networks traffic management (i.e. putting controls or limitations on particular types of internet traffic or users) is considered essential for the proper operation of the internet.

Although the use of traffic management can benefit consumers, net neutrality proponents argue that it is anti-competitive and negatively impacts upon users' rights to enjoy the full benefit of the internet.  Until recently, net neutrality has not been enshrined in any way into UK law.

The recently amended EU telecommunications regulatory framework has incorporated a number of measures that have arisen out of the network neutrality debate.  These include:

  • requiring national regulatory authorities ("NRA") to promote the ability of end users to access and distribute information to run applications of their choice (so called net freedoms);

  • imposing measures to ensure enhanced transparency of information being provided by service providers, including providing consumers with information on any conditions limiting access to or use of services and applications, minimum service quality levels and on traffic management measures that could impact of service quality; and

  • enabling NRAs to set minimum quality of service requirements on service providers.

Network neutrality proponents would argue that these measures do not go far enough, and indeed they do not strictly provide for network neutrality.  Rather, they increase the obligation on network operators and service providers to be more transparent about their services.

The European Parliament

Back on 19 April 2011, the European Commission published a communication on the open internet and net neutrality in Europe, with the Body of European Regulators ("BEREC") having been asked to undertake a fact find exercise on a number of issues, including barriers to switching, blocking or throttling of internet traffic, transparency and quality of service.  The European Parliament in its resolution raised a number of areas that it considered that the European commission should focus its attentions, including:

  • ensuring consistent application and enforcement of the existing EU telecoms regulatory framework and that the Commission should within 6 months of receiving BEREC's findings assess whether further regulatory measures are required;

  • closely monitoring the development of traffic-management practices and interconnection agreements.  Paying particular attention to blocking and throttling of traffic, excessive pricing for VoIP and file sharing, anti-competitive behaviour and excessive degradation of quality; and

  • providing EU guidelines for ensuring that the current rules on network neutrality are properly and consistently applied and enforced.

The European Parliament was of the view that departures from network neutrality could result in anti-competitive behaviours, including blocking of innovation, restrictions on freedom of expression and media pluralism, lack of consumer awareness and infringements of privacy.  Specialised or managed services should not be permitted to infringe on the ability of users to obtain "best effort" internet access.  Reasonable traffic management is therefore required to ensure that end user connectivity is not disrupted by network congestion; however, National Regulatory Authorities need to use their powers to ensure minimum quality of service standards are met.

EU ministers plan to adopt formal conclusions on the open internet and net neutrality in Europe at the Transport, Telecommunications and Energy Council on 13 December 2011.


Ofcom in a statement dated 24 November 2011recognised that there are two main forms of internet traffic management - "best efforts internet" and "managed services".  Its' approach to traffic management recognises the benefits associated with both of these approaches and aims for the two to co-exist.  Ofcom's ultimate aim in this area is to ensure that consumers and citizens continue to benefit from both innovation in services and investment in networks.  The underlying premise of this approach is that there is effective competition amongst ISPs so that consumers have enough information to enable them to make the best purchasing decisions and to switch providers where appropriate.

The use of traffic management techniques can negatively impact on the provision of consumer information.  Ofcom in its statement set out what it considers to be the basic principles for the provision of clear consumer information, namely: it needs to be appropriate, accessible, understandable, verifiable, comparable and current.  Ultimately these principles can be seen as requiring a trade off between simplicity and completeness and only time will tell whether such a balance has been achieved.

To supplement these principles Ofcom has indicated that the information provided should include at least the following:

  • average speed information indicating the level of service consumers can expect to receive;

  • information on the impact of any traffic management that is used on certain service types, such as the impact on P2P software at peak times; and

  • information on services that may be blocked or where consumers are unable to run the services or applications of their choice.

Material changes to information provided to consumers need to be notified as quickly as possible and where such changes have a significant impact on the services purchased the ISP should give the consumer the option to switch to another provider.  In addition where marketing terms are used to describe the services provided such terms must be simple to understand and capable of being compared with other providers.  Ofcom also encouraged ISPs to enable "cooling off" periods for customers to cancel contracts they are not happy with especially where the customer is tied in for a long period of time.

However, Ofcom does not intend to be more prescriptive in this area for now, as its preference is for voluntary self-regulatory codes to emerge, such as the traffic transparency code put in place by a number of ISPs since July 2011.  The downside to such an approach is that only Ofcom is able to verify independently certain information that is provided by ISPs.  Under such a scenario Ofcom intends to gather and review relevant information as part of its duties to report on the state of the UK's infrastructure under the Digital Economy Act.  For such an approach to work Ofcom itself considers that ISPs need to think carefully about how best to provide information which is accessible and understandable.  Its intention is to monitor this process and keep under review the possibility of intervening more formally in order to ensure that there is sufficient transparency as to the use of traffic management by network operators.

Ultimately, provided that there is genuine competition and rivalry among firms, Ofcom does not necessarily regard the blocking of services by competing providers or discrimination against competing services as being anti-competitive.  It argues that it should be possible to rely on the operation of market forces to address the issue of blocking and discrimination.  Although it does have concerns that restricted access to the internet could have a stifling effect on innovation, especially in relation to the current blocking of services by mobile operators.  If such actions remain as widespread and persistent as at present Ofcom would need to consider whether the benefits of intervening outweigh the risks associated with such an approach.  At present it does not  consider such intervention necessary, due to the stage of the development of the market, but it will continue to monitor the situation closely.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.