CASTING A WIDE NET

the scope of the ‘net neutrality’ debate

Net neutrality is a hot topic on both sides of the Atlantic, with the US Federal Communication Commission (FCC)’s
recent consultations on draft regulatory proposals, the EU’s implementation of the Telecoms Package, and the
UK’s drafting of the Digital Economy Bill all raising debate over net neutrality in one form or another.

Net neutrality is a term which crops up in a variety of contexts, sometimes held up as a fundamental principle
akin to human rights and sometimes dismissed as an inconvenient ideal. Much has been written on this multi-
faceted subject, which casts a wide net over a variety of political, economic, legal, technological, social and
ethical issues.

This article seeks to outline the scope of the various debates over net neutrality in order to illustrate the breadth
of the net neutrality principle. It is far from a comprehensive overview of the subject and does not seek to
address the more complex and technical communications and technology issues.

What is ‘net neutrality’?

The term 'net neutrality' is somewhat obscure because it means different things to different people in different
contexts. One blogger describes it as "the idea that every packet of information...carries equal importance. That
is, a message from me moves no faster or slower over the Internet than a message from the Queen.1" Google
has variously described it as “the concept that the Internet should remain free and open to all comers2” and “the
principle that Internet users should be in control of what content they view and what applications they use on
the Internet3". Christopher Marsden in his excellent book, ‘Net Neutrality: Towards a Co-Regulatory Solution’,
defines it as “a contested policy principle regarding access for content providers to the Internet end-user, and
potential discrimination in that access where the end-user’s ISP or another ISP blocks that access in part or
whole, often subject to special fees”4.

Put simply, net neutrality is a ‘no discrimination’ rule; the principle that the Internet is a method of
communicating packets of information from one end to another which does not: (a) investigate the packets; or
(b) discriminate between the packets.

Why does it matter?

Proponents of net neutrality5 argue that a neutral net is essential for the fostering of innovation, access to
information, consumer choice, freedom of expression and the free market.

The key players in the various debates concerning net neutrality range from incumbent and opposition
administrations, ‘Big Media’ and powerful telecommunications companies to consumer groups, academics and, of
course, end users.

1
‘Open Source’ (retrieved 02.02.10)
2
‘What Do We Mean By Net Neutrality’ (retrieved 01.02.10)
3
‘Wikipedia’ entry (retrieved 01.02.10)
4
Marsden, Christopher T., ‘Net Neutrality: Towards a Co-Regulatory Solution’, p.29.
5
E.g. the ‘Save the Internet’ coalition – see ‘Who will be affected by the loss of net neutrality’ for further
information (retrieved 22.03.10)
Page 2
20 April 2010

Quality of Service

Obviously, Internet users want the best service from their ISPs, measured by such factors as connectivity,
bandwidth, download limits and speed, at the lowest cost. In order to manage the capacity of their networks,
ISPs may slow different types of traffic to suit them. They may do this for business purposes (to save money), to
get the competitive edge (to promote their own bundled services over those offered by third parties), to enhance
the user experience (by blocking spam)...the list goes on.

In terms of the commercial model offered to consumers, it is not objectionable if ISPs offer pricing models that
allow consumers to pay more for faster connectivity or greater download limits. On this subject, Tim Berners-Lee,
inventor of the World Wide Web, has said “Net neutrality is this: If I pay to connect to the Net with a certain
quality of service, and you pay to connect with that or greater quality of service, then we can communicate at
that level. That’s all.”6 The key point here is the ISPs must be transparent and their advertising must not be
misleading.

Traffic Management

Similarly, ISPs need to conduct some traffic management to block spam or our mailboxes would be deluged with
questionable emails (yes, even more so than at present). More controversially, ISPs have been known to throttle
traffic which makes high demands on bandwidth – for example, a couple of years ago, the FCC investigated
Comcast’s practice of delaying BitTorrent traffic, which Comcast argued was necessary to keep its network
operational.

However, ISPs may also selectively slow certain types of traffic in order to prioritise other types of traffic to meet
their own business interests, which may be at odds with the interests of consumers. For example, if an ISP
merges with a content provider, then prioritises that content provider’s traffic over a competitor’s traffic, the
consumer experience is adversely affected and the consumer’s freedom of choice is manipulated.

Vertical mergers between ISPs and content providers are viewed with caution because they potentially give ISPs
the ability and the incentive to prioritise their own content and slow the traffic of their competitors. US regulators
are currently scrutinising the proposed takeover of NBC Universal by Comcast, assessing concerns that the
combined media/communications company would use its dominant market position to bully cable competitors,
raise prices for consumers and restrict access to Internet video.

Unlawful Content

For all the benefits of open and free access to the Internet and for all the positive things the Internet can and
has been used for, the Internet, of itself, is not a ‘good’ or a ‘bad’ thing. It is a method of communication, a
means of sharing knowledge, a publishing forum and a conduit for transferring files. Its relatively low cost, high
speed and international nature differentiates it from other, more cumbersome methods of communication such
as the postal service. It is true that the Internet has the capacity to be used for ‘good’ things – for example,
government information campaigns, supply of long tail goods and services, communication. However, it cannot
be denied that, as with other communication and publishing services, it is also used for countless ‘bad’ things –
piracy, spam, libel, to name but a few.

6
Timbl’s blog (retrieved 18.02.10)
Page 3
20 April 2010

At what point does fostering a ‘neutral net’ mean turning a blind eye to these ‘bad’ things? The net is ‘neutral’, or
‘agnostic’ as to the content it carries. This has been acknowledged, for example, in the ‘mere conduit’ exemption
from liability for ISPs in Article 12 of the EU’s ‘E-Commerce Directive7’. Article 14 of the same Directive affords
exemption from liability for ‘information society services’ (websites, search engines, ISPs, etc) as long as they
operate an effective and expeditious ‘notice and take down’ policy.

Returning to my earlier definition of net neutrality as the principle that the Internet is a method of
communicating packets of information from one end to another which does not: (a) investigate the packets; or
(b) discriminate between the packets, how does this fit with the E-Commerce Directive exemptions, recent EU
case law, and UK government proposals?

The E-Commerce Directive exemptions reflect the principle of net neutrality in that ISPs etc are not required to
inspect the packets of data they carry – Article 15 expressly states that “Member States shall not impose a
general obligation on providers…to monitor the information which they transmit or store, nor a general obligation
actively to seek facts or circumstances indicating illegal activity.” EU legislation does not, however, provide that
ISPs will not discriminate between the packets of data they carry.

The Swedish decision last year to sentence the owners of the BitTorrent website ‘Pirate Bay’ to a year in prison
and a hefty fine for ‘authorising’ copyright infringement raised many questions as to the extent to which an
internet intermediary should be held liable for the content it carries and/or the traffic it directs via its networks.
Rights owners welcomed this decision as a positive step in addressing the threat they face by making content
available in the ‘digital age’ and in recognising the role played by internet intermediaries who claim ignorance as
to the role they play in facilitating copyright infringement. Those intermediaries in turn argue that it is unduly
onerous if they are held vicariously liable for the content they host or to which they provide links.

Against this backdrop, the Digital Economy Bill, currently being read in the British Parliament, has sparked
controversy. As currently drafted, it would introduce the ability for ISPs to disconnect repeat infringers who share
copyright works online, which effectively changes the role of ISPs from postmen to policemen. Many find this
controversial because it means users could be disconnected from the Internet without their case having been
heard by a judge. Some argue that access to the Internet is a fundamental right and that this summary
disconnection of ‘offenders’ infringes their civil liberties. On the other hand, this Bill offers comfort to rights
owners that their content is valued, that it deserves protection and that positive, results-driven steps are being
taken to reduce piracy. The Bill reinforces the message extolled by rights owners that “with rights come
responsibilities”.

Conclusion

All of this adds up to the fundamental question: ‘do we need to regulate the Internet in order to protect it?’
Perhaps, in some respects, for example to protect consumers against anti-competitive activities and to protect
copyright owners in this rapidly evolving ‘digital age’.

However, the principle of net neutrality is a close relative of freedom of speech. Although the Internet can be
used for ‘bad’ things, if it is over-zealously regulated, the remedy has the potential to be worse than the disease

7
Directive on Electronic Commerce
Page 4
20 April 2010

(for example in terms of censorship, corruption and stifling of innovation). The phrase “I do not agree with what
you are saying but I will defend to the death your right to say it” seems appropriate here, particularly in the
context of Google’s recent withdrawal of operations from China, where it was required to censor search results in
accordance with state restrictions.

As with so many things, the answer lies in finding a balance between introducing regulations necessary to protect
legitimate interests (copyright, freedom of expression, right to privacy, consumer protection, market forces)
without unduly stifling the activities of the intermediaries essential for the open, accessible, unfettered operation
of the Internet.

Yasmin Joomraty
Laurence Kaye Solicitors
© Laurence Kaye 2009
T: 01923 352 117
E: laurie@laurencekaye.com
www.laurencekaye.com
http://laurencekaye.typepad.com/
This article is not intended to be exhaustive and it does not constitute or substitute legal advice,
which should be sought on a case by case basis.
Please feel free to copy or make available this article without modification in print or electronic form for non-
commercial purposes. If you do so, please include this disclaimer and copyright wording with attribution. If you
want to re-publish or make the whole or part of this article available in a commercial service or publication,
please contact the author at laurie@laurencekaye.com.