Yes, Network Fees Violate Net Neutrality.
As we have long established, startups all over the world have benefitted from a free and open internet. Net neutrality principles grounded in access to that free and open internet refer to the way that Internet Service Providers (ISPs) manage the data or traffic carried on their networks when data is requested by broadband subscribers (known as end-users under EU law) from providers of content, applications or services (CAPs), as well as when traffic is exchanged between end-users. Today, we are seeing how these principles, the bedrock of freedom of speech online, are at risk of being cast aside by large European ISPs’ demand for Network Fees.
Indeed, no less than those charged with overseeing internet traffic are the ones sounding the alarm. BEREC, the body responsible for guiding European Member States on how to protect Net Neutrality, have warned that the implementation of Network Fees would inherently be at odds with the Open Internet Regulation “because it involves treating traffic unequally, contradicting the principles of equal treatment and nondiscrimination enshrined in Article 3(3).”
Barbara van Schewick, a leading expert on net neutrality, a professor at Stanford Law School, and the director of Stanford Law School’s Center for Internet Society has joined with other luminaries of the free and open internet to second this opinion. In her latest article, Professor van Schewick also points out that the European Court of Justice has been clear on the interpretation of the Open Internet Regulation. In four different rulings between 2020 and 2021, the ECJ considered that treating traffic differently economically constituted a Net Neutrality violation.
Internet policy expert Dr Konstantinos Komaitis, has also cautioned of the dangers of changing the free and open nature of the internet, stressing how net neutrality, users, startups and the wider ecosystem will be affected: “If you allow access networks even more power than they currently have, if you recognize the right of termination monopoly over the way content is delivered to users, if you unnecessarily intervene in the functioning arrangements on how networks interconnect, then you are effectively changing the topology of the Internet.”
These experts aren’t the only ones who have spoken against Network Fees: Consumer associations, Governments, agencies, small and medium business associations and politicians all have openly spoken against the implementation of Network Fees precisely because it contradicts the open and free nature of the internet. And yet, time and again, we have heard from Commissioner Breton that any form of network fees would not hamper Net Neutrality rules.