Net Neutrality, EU final call on Internet governance?

It is possible to celebrate the ability of European models of pluralism protection to adapt to the new challenges posed by technological progress. The European Union has in particular issued a favorable framework for innovation by liberalizing the telecommunications market. In addition, it has also reaffirmed its conception of the digital world thanks to numerous regulations  regarding  the responsibility  of  the  contents  diffused,  cybersecurity,  taxation, competition or in the field of the culture with the recent directive on copyrights. There is therefore obvious convergence between the infrastructure and their contents, but these two regulatory bodies still have specific missions within the European Union. The 2009 European Regulation created the European Electronic Regulators Body (BEREC) to better formalize the joint actions of independent regulators and relations with the European institutions.

However, it remains that in terms of digital, US hegemony is undeniable. All the more so, that one can observe a powerful economic competition between the United States and China to determine who will have the monopoly in the digital sphere. The debate leading to questioning an end on net neutrality is largely influenced by an American regulation of the digital, which is at the antipodes of a European strategy. Net neutrality was actually installed by the Federal Communications Commission under President Barack Obama, but have been abandoned under the administration of President Donald Trump. Net neutrality is a founding principle of the Internet, which ensures that telecom operators do not discriminate against the communications of their users, but remain mere transmitters of information. The legal framework of net neutrality in the European Union (EU) is laid down by Article 3 of EU Regulation 2015/2120. This principle allows all users, regardless of their resources, to access the same network as a whole. Thus, this regulation guarantees the possibility for all users to communicate freely through the exercise of effective and fair competition between network operators and telecommunications service providers.

The arrival of Netflix, the subscription video-on-demand service, has polarized the essentially positive view of net neutrality in the EU. Thus, Olivier Schrameck, the president of the CSA pronounced in his speech of July 3, 2014 during the 11th days of the association of the promotion of the audio-visual (APA) that one “must finish with the absolutist conception of the  net  neutrality  “.    Indeed,  the  service is a broad bandwidth consumer in the evening without contributing financially in return. The hyper-demand for bandwidth pushed up the costs of network infrastructure. Proponents of an end to neutrality believes that it primarily benefits actors like Google or Facebook who already have a favorable tax regime. Consequently, strengthening the power of large players in the digital field. By ending net neutrality providers would then be able to slow down data traffic from certain website and give priorities to others by charging differently depending on the content. It seems legitimate to  wonder  if  the  EU  should  then  follow  the  path of Donald Trump’s administration by changing the rules of the Internet. However, net neutrality seems like a fundamental instrument  for  the  protection  of  the  EU  fundamental  rights  on  the  Internet  such  as  the freedom  of  expression  and  the  right  to receive and impart information. Adding political objectives  to  a  debate,  which  seems  dominated  by  the  will  to  maintain  an  economic modelling of pricing in two-sided markets.

If  net neutrality is fundamental in order to preserve the European model of pluralism of information  and  consumer  protection,  how  can  it  be  maintained  in  the  digital  age?  I personally  believe  net  neutrality  should  be  thought  in terms of how to conceptualise its regulation rather than imagining its end. For instance, a prescriptive ex-ante regulation could undermine innovation. The flexibility of European competition law allows for the treatment of a wide variety of sectors, such as responding to digital challenges. It would be dangerous to move away from it. Today, the way in which the internet works rests on a biased competition. There is therefore a major dysfunction of the digital market, which poses a very important risk to our economy.  Competition law should be rethought in order to create new competitors,   as   the   previous  regulations  of  Telecoms  did  by  creating  a  favourable environment for actors concurrencing a monopoly.   The actual regulation allows national judicial different interpretations on net neutrality which lead to different implementations as data traffic is treated according to national jurisdictions interpretation.

Although useful, the competition itself is not enough to regulate the digital. Digital platforms, for example, do not necessarily have an interest in ensuring diversity and sufficient quality of their  content.  In  terms  of  digital  regulation,  Member  states  can not act alone, since the intrinsic nature of digital technology establishes a world-class territory. If the prospect of a global regulation of the digital remains distant, it is possible to solidify a regulation on a European scale. Especially since the GDPR establishes a network regulation, with the obligation  of  cooperation  between  the  different  regulatory bodies across Europe. Europe therefore has the tools to combine regulation and innovation, but they remain difficulties in its implementation, including the lack of common decision-making between member states resulting from a true “balkanisation of the web”.  The GAFA’s taxation policy also illustrates the presence of disparate opinions that hold back the prospect of a Europe acting as a unified actor in the digital domain.