Net Neutrality, What Else?
Wim Nauwelaerts
Partner
Hunton & Williams
WHAT IS NET NEUTRALITY?
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WHAT IS NET NEUTRALITY?
“Net Neutrality is about keeping the Internet open
and without discrimination. Put simply, Net
Neutrality means every customer should be able to
access every service, and every service should be
able to access every customer. It is the Internet
Service Providers’ responsibility to make sure they
operate so that that happens”
Prof. Sir Tim Berners-Lee
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EU PERSPECTIVE TO NET NEUTRALITY
• Plays a key role in the EU’s common vision for Internet
Governance
• Growing consensus that Net Neutrality should be
regulated at EU-level
– Proposed Telecoms Single Market RegulationCOM(2013)0627 (“TSMR”)
• Includes definition and specific provisions on Net
Neutrality (art. 23)
• EU Parliament has agreed on compromise text; Council
expected to take a final position by end of 2014?
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EU PERSPECTIVE TO NET NEUTRALITY
Key Elements of Net Neutrality in the proposed TSMR:
– ISPs and end-users may agree to limit data volumes
or speeds
– ISPs may not restrict end-users’ right to internet
access by blocking, slowing down, altering, degrading
or discriminating against specific content, applications
or services
– Except if necessary to apply Traffic Management
measures
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EU PERSPECTIVE TO NET NEUTRALITY
Key Elements of Net Neutrality in the proposed TSMR:
• Traffic Management measures shall be transparent, nondiscriminatory, proportionate and necessary to:
– Implement a court order
– Preserve the integrity and security of the network,
services provided via the network, and end-users'
terminals
– Prevent or mitigate the effects of network
congestion
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EU PERSPECTIVE TO NET NEUTRALITY
Key Elements of Net Neutrality in the proposed TSMR:
• Without prejudice to the EU Data Protection Directive,
Traffic Management measures shall:
– Only entail such processing of personal data that is
necessary and proportionate to achieve the purposes, and
– Be subject to the ePrivacy Directive, in particular with
respect to confidentiality of communications
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EU PERSPECTIVE TO NET NEUTRALITY
EU Member State experience with Net Neutrality
• Legislative proposals in e.g. Belgium; France
• Legal provisions in the Netherlands; Slovenia
– Confusion on scope of the law in the Netherlands: only
ISPs or also other service providers?
– “Soft” neutrality versus “hard” neutrality
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NET NEUTRALITY CONSIDERATIONS
Right to internet access
Quality of service
Price discrimination
Content discrimination
Network protection/integrity
Data “explosions””
Innovation interference
Privacy & data protection
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NET NEUTRALITY AND EU PRIVACY /
DATA PROTECTION
How do EU rules on privacy and data protection apply?
Possible Scenario 1: Restriction of end-users’ rights; no
Traffic Management exception applies
– Blocking, slowing down, altering, etc. = processing of
personal data under EU data protection rules?
– ISP = data “controller”?
– Compliance with fundamental data protection principles
• Legal basis for processing?
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NET NEUTRALITY AND EU PRIVACY /
DATA PROTECTION
How do EU rules on privacy and data protection apply?
Possible Scenario 2: Restriction of end-users’ rights and
Traffic Management exception applies
– Traffic Management measures = processing of
Personal Data under EU data protection rules
– ISP = data controller
– Compliance with fundamental data protection
principles
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NET NEUTRALITY AND EU PRIVACY /
DATA PROTECTION
Compliance with fundamental data protection
principles
– Legal basis for processing
• Legitimate interest?
• End-user consent: only if results of data processing are
used for secondary purposes?
– Transparency
– Purpose limitation
Interpretation of
– Proportionality
“Necessary”?
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NET NEUTRALITY AND EU PRIVACY /
DATA PROTECTION
Specific issues associated with consent as a
legal basis
– Consent must meet certain conditions:
• Free: is alternative access without TM measures
realistic?
• Specific: but flexibility towards TM changes?
• Informed indication of end- user’s wishes: “user
concerned” vs. “all users involved” ?
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NET NEUTRALITY AND EU PRIVACY /
DATA PROTECTION
Specific issues associated with the
proportionality (data minimization) principle
– Only monitoring/filtering of personal data that
are adequate, relevant & not excessive in
relation to the purpose of processing
• What personal data are “suitable”?
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NET NEUTRALITY AND EU PRIVACY /
DATA PROTECTION
Specific issues associated with legal requirements to
keep personal data secure
– Data breach notification duties under the
ePrivacy Directive and Regulation 611/2013
• Duty to notify competent national authority within 24H
• Duty to notify end-users if likely adverse effect on their
personal data or privacy
– Who’s affected?
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NET NEUTRALITY IN THE EU:
GOING FORWARD
• EU Parliament & Council to consider the
scope of Net Neutrality requirements (in
proposed TSMR)
• Further clarifications needed regarding
– Monitoring of speeds/data volumes
– Legal grounds for TM measures
– Application of proportionality (data minimization)
principle
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