Net neutrality plans could lead to increase in litigation, warns Ofcom

Out-Law News | 19 May 2014 | 4:00 pm | 1 min. read

The chief executive of the UK's telecoms regulator Ofcom has warned that proposed new EU laws on 'net neutrality' could result in an increase in the number of law suits involving telecoms companies. 

In a recent speech Ed Richards warned against over-regulating the way internet service providers (ISPs) deliver network traffic to their customers.

"I fear that well-intentioned but over prescriptive and detailed legislation may deliver the opposite of the intended effect," Richards said. "Not more certainty but less. Not the timely exercise of reasonable objective judgement, but the pursuit of time-consuming and self-interested litigation."

"The internet is an enormously complex and dynamic ecosystem, where the law of unintended consequences looms very large indeed.  The net neutrality debate has been a long time coming in Europe and yet as we finally move towards a collective view on the matter, it may be that the priority is to recognise that we have to live with significant uncertainty in this area, to recognise that an open internet need not be the enemy of investment and differentiation – and to cleave to clear principles rather than to seek to legislate in ever greater detail," he said.

Net neutrality is the principle that ISPs will deliver all content requested by a customer equally, not allowing content producers to have preferential access to subscribers. The European Commission proposed moves to boost net neutrality in Europe amid concerns that ISPs were blocking or slowing down services provided by their competitors.

Plans backed by MEPs in a vote of the European Parliament last month set a general requirement that ISPs treat content equally. However, the proposals, which still need to be approved by the EU's Council of Ministers, contain a number of carve outs that allow ISPs to deviate from the general 'net neutral' position.

ISPs will be permitted to block or slow down the internet to enforce a court order, preserve network security or prevent temporary network congestion. If such "traffic management measures" are used, they must be "transparent, non-discriminatory and proportionate" and "not be maintained longer than necessary," said the MEPs.

In addition, ISPs and content providers will be able to reach agreement on the provision of specialised services where the quality of service is higher than normal, providing that the provision of those services does not interfere with the internet speeds promised to other customers.

EU rules should recognise that 'net neutrality' and traffic management are both "in the public interest", Richards said in his speech. He added that specialised service agreements "should ultimately be beneficial for consumers".

"An example may be the provision of enhanced quality of service for a high quality content service which does not diminish the general 'best-efforts' public internet," Richards said. "In a sense that does amount to a form of discrimination, but one that is normally efficiency enhancing."