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Protecting Human Rights through Network Neutrality

Dear all,

I would like to share with you the report on “Protecting Human Rights through Network Neutrality” that I drafted together with Matthijs van Bergen for the Council of Europe. One month ago, we presented this report to the CoE Steering Committee on Media and Information Society (CDMSI), which agreed to use it as a basis for the work of the Committee of Experts on Cross-Border Flow of Internet Traffic and Internet Freedom (MSI-INT) with regard to the elaboration of a Resolution on Network Neutrality.

Below the executive summary of the Report. Comments are more than welcome!

Best regards,

Luca

 

Executive summary

  1. This report was drafted with the goals to (i) provide deeper insight into how net(work) neutrality relates to human rights and (ii) suggest a policy and legal approach aimed at granting the full enjoyment of Internet users’ fundamental rights and freedoms through an open and neutral Internet environment, while simultaneously promoting unrestrained innovation and economic growth in the digital economy.[1]

Network neutrality is a key enabler of human rights

  1. Network neutrality prescribes that Internet traffic shall be treated without undue discrimination, restriction or interference, so that end-users[2] enjoy the “greatest possible access to Internet-based content, applications and services of their choice, whether or not they are offered free of charge, using suitable devices of their choice”.[3]
  2. On the one hand, network neutrality is instrumental to enable any Internet user to offer and enjoy online content, applications and services through any Internet-connected device of their choice, without having to conclude agreements with each Internet Service Provider (“ISP”) [4] of each intended recipient, and all ISPs in between. On the other hand, net neutrality ensures that Internet-users’ choices for certain online content, applications, services and devices are not unduly influenced by discriminatory delivery of Internet traffic. As such, net neutrality enables self-determination and facilitates the openness of the Internet, by deflating market and institutional barriers to enter into the ‘free market of ideas’ and to participate on equal footing in economic, social and political activities.
  3. In our current information society, the ability to freely receive and impart ideas and information and to fully participate in democratic life is truly reliant on the nature of one’s Internet connection.[5] By ascribing to users the ability to choose freely how to utilise their Internet connection, without undue interferences from public or private entities, network neutrality directly contributes to the effective enjoyment of a range of fundamental rights, such as Internet users’ freedom of speech and right to privacy,[6] as well as the promotion of a diverse and pluralistic media-landscape, while unleashing a virtuous cycle of innovation without permission.
  4. For such reasons the Committee of Ministers of the Council of Europe adopted the 2010 Declaration on network neutrality, underlining its commitment to this fundamental principle,[7] while in 2012 the Internet Governance Strategy of the Council of Europe urged the development of “human rights policy principles on “network neutrality” to ensure Internet users have the greatest possible access to content, applications and services of their choice as part of the public service value of the Internet and in full respect of fundamental rights”[8].

Network neutrality has come under threat

  1. Certain Internet traffic management (“ITM”)[9] techniques currently allow ISPs to block, downgrade or prioritise specific data flows. Research has shown that ITM is frequently deployed in order to block or downgrade specific Internet traffic relating to online services which compete with other services offered by the ISPs.[10] Such practices compromise end-users’ capacity to freely receive and impart information online using applications, services and devices of their choice, and jeopardise the open and neutral character of Internet architecture. Furthermore, some large European ISPs have made clear through the media and other avenues, such as shareholders' meetings and industry associations, that they intend to depart from neutral Internet access provision, in order to discriminate and prioritise specific data-flows and monetise the value that specific online applications, services and content (conceived by Internet users) present to their subscribers.[11] 
  2. This illustrates that existing European approaches based purely on economic and competition-law principles have thus far failed to fully enforce the network neutrality principle, even though European telecommunications markets have generally been considered relatively competitive.[12] Indeed, just as the right to vote alone is not enough to ensure freedom in a constitutional democracy, the possibility to switch providers – which may be seen as  the right to ‘vote (an ISP) with your feet’ – is not enough to adequately ensure the enjoyment of users’ freedoms on the Internet.
  3. Therefore, it seems necessary to query what kind of policy and legal approach would be best suited to enforce the network neutrality principle and safeguard the public-service value of the Internet.

A recommended policy and legal approach to network neutrality

  1. In this report we propose a model framework on network neutrality which all Council of Europe member states can adopt in their legal systems. Importantly, the framework is directly inspired by article 10 ECHR, which ensures the right to receive and impart ideas and information without restriction or interference, unless such interference is strictly necessary for and proportionate to a legitimate aim. Since the goal is to ensure that Internet traffic shall be transmitted without undue discrimination, restriction or interference, whether by public or private actors, the format of article 10 ECHR lends itself very well to be transposed into a legal framework guaranteeing network neutrality.


[1]     With respect to the goals of this report, it should be noted that a number of participants to the Council of Europe Multi-Stakeholder Dialogue on Network Neutrality and Human Rights – a conference organised by the Council of Europe on 29-30 May 2013 – highlighted the interest of a policy framework aimed at safeguarding net neutrality.  See: Belli L., Council of Europe Multi-Stakeholder Dialogue on Network Neutrality and Human Rights, Outcome Paper, June 2013. The concerns expressed during this conference led the Council of Europe to commission this report.

[2]     In this report we speak of Internet (or end-) users rather than consumers. This in order to reflect the idea that consumers are solely or primarily economic actors in a market setting, whereas ‘Internet users’ should be regarded as autonomous participants of an ‘information society’, connected through the Internet, with interests that range beyond the merely economical, including also social, political and other interests.

[3]     Council of Europe, 2010 Declaration of the Committee of Ministers on Network Neutrality, para. 4.  

[4]     The term “Internet service provider” (ISP) is used to denote a legal person providing Internet connectivity to its customers. The term ISP also encompasses Internet transit providers – i.e. those entities that provide connectivity to various ISP, allowing them to interconnect their networks – but in this report, it does not include hosting providers and providers of online services, applications and content.

[5]     See: Council of Europe, Recommendation CM/Rec(2007)16 of the Committee of Ministers to member states on measures to promote the public service value of the Internet.

[6]     Some even suggest a notion of net neutrality as a human networking right sui generis. See: Berners Lee T., Long live the web, Scientific American 22 November 2010; https://en.wikipedia.org/wiki/Tim_Berners-Lee.

[7]     See: Council of Europe, 2010 Declaration of the Committee of Ministers on Network Neutrality, para 9, which also suggests further exploring network neutrality “within a Council of Europe framework with a view to providing guidance to member states”. This suggestion has been reiterated by several participants to the Multi-Stakeholder Dialogue on Network Neutrality and Human Rights. See: Belli L., Council of Europe Multi-Stakeholder Dialogue on Network Neutrality and Human Rights, Outcome Paper, op.cit.

[8]     See: Council of Europe Internet Governance, Council of Europe Strategy 2012-2015, CM(2011)175 final, 15 March 2012, paragraph I.8.e.

[9]     According to BEREC ITM is: “all technical means used to process through the network traffic sent or received by end users, including both application-specific and application-agnostic traffic management. BEREC, A view of traffic management and other practices resulting in restrictions to the open Internet in Europe, 29 May 2012, p. 4.

[10]    Relating to Europe, see: BEREC, op. cit. Relating to the USA, see: FCC 10-201, Report and order on the open Internet 2010, paragraph 14.

[11]    E.g. KPN Investor Day, London 10 May 2011; ETNO paper on Contribution to WCIT ITRs Proposal to Address New Internet Ecosystem. In response, see e.g.: BEREC, BEREC’s comments on the ETNO proposal for ITU/WCIT or similar initiatives along these lines, BoR (12) 120 rev.1, 14 November 2012.

[12]    It should be stressed that, at the EU level, the Universal Service Directive (i.e. directive 2002/22/EC) has strengthened consumer protection, fostering better consumer information pertaining to supply conditions and tariffs in order to allow them to more easily switch providers, thus promoting competition in the electronic communications markets. However, as pointed out by BEREC, several types of discriminatory practices are particularly widespread at the European level. See: BEREC, A view of traffic management and other practices resulting in restrictions to the open Internet, op. cit. Furthermore, it has been noted by the Netherlands Bureau for Economic Policy Analysis that “one cannot be optimistic about the intensity of competition [in the telecoms sector]. Moreover, if providers make their networks “less neutral” by implementing network bias practices, the intensity of competition decreases further. ” See: CPB response of 23 September 2010 to the public consultation on Internet and net neutrality.

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