Regulating the web, the Open Internet and Net Neutrality

Sir Tim Berners-Lee, creator of the World Wide Web, earlier this year warned that net neutrality—“a key element of the openness that underpins the Web and the broader Internet”—is under threat. And while internet activists cheered the announcement in February this year that the US telecommunications regulator had approved a plan to govern the internet like a public utility—thereby enshrining net neutrality into US law—this is currently being subjected to legal challenge.

Here in the UK, all the major Internet Service Providers (ISPs) are signed up to the Open Internet Code—a voluntary code of practice designed to support the open internet—with EE, Virgin Media and Vodafone the latest ISPs to sign up in January 2015. So what is net neutrality, why does it matter and is regulation needed?

What is net neutrality?

Sir Tim Berners-Lee describes net neutrality as “the principle that each ‘packet’ of data must be treated equally by the network”. Net neutrality is thus seen as a key tool in ensuring an open internet in which all information and services have equal and open access online without regard to the content, destination or source.

Without this neutral stance, open internet advocates argue ISPs could choose to discriminate and decide how fast data will be transmitted, and at what quality. This means that an ISP could speed up the transmission of data to websites willing to pay the premium, or slowdown data sent to competing websites. This has given rise to fears of a future in which the internet operates with both fast lanes, available to those willing to pay, and slow lanes, for those services unable to pay. Consequently, there are a number of on-going campaigns to enshrine net neutrality in law.

However, ISPs maintain that increasingly data-hungry services such as online streaming, demand some form of online traffic management action aimed at ensuring the smooth functioning of the internet. Indeed, most telecommunications regulators allow companies to manage the network traffic with an application-agnostic approach—which would not favour any specific application.

Should Government’s regulate for net neutrality?

At the crux of the net neutrality debate, for proponents of regulation, are fears of a tiered internet service—with premiums paid for faster access to content—which would put newer online companies at a disadvantage. As a consequence, campaigners argue this will slow innovation in online services. Indeed, Savetheinternet.com, a net neutrality advocacy group, maintain that net neutrality supports innovation as it “lowers the barriers of entry for entrepreneurs, startups and small businesses by ensuring the Web is a fair and level playing field”.

On 7 June 2006, as the US House of Representatives was due to vote on a bill to change the way the internet was regulated, Google published a blogpost setting out their support for net neutrality. In this post Google highlighted the threat posed to innovation if net neutrality was not upheld:

“Google believes that forcing people and companies to get permission from, and pay special fees to, the phone and cable companies to connect with one another online is fundamentally counter to the freedom and innovation that have defined the Internet.”

While many content creators have come out in support of some form net neutrality regulation, ISPs are, on the whole, opposed to regulation. The industry says that the occasional slowing down of connections is a normal traffic management action aimed at ensuring the smooth functioning of the internet. For example, ISPs say that it may be necessary to charge a movie site a fee to ensure that their 4K ultra-high definition films can be played smoothly on consumers’ devices. Some tech companies have also argued that net neutrality could lead to a slowdown in the roll-out of broadband infrastructure, as the ISPs won’t have the incentives to invest.

Net Neutrality in the UK

On 24 November 2011, Ofcom published a statement setting out its approach to net neutrality. The executive summary to this statement started by highlighting that “growth in the use of the internet delivers substantial benefits, but may also require new approaches to traffic management”. Ofcom found that “the market has generally been an effective mechanism for delivering [consumer] benefits” and that their approach to traffic management would “continue to rely primarily on there being effective competition amongst Internet Service Providers (ISPs)”.

This self-regulatory approach has resulted in the UK’s major ISPs signing up to an industry voluntary code of practice in 2012: the Open Internet Code. Signatories to the code agreed to three commitments:

  1. to provide full and open internet access to products with no blocked services;
  2. to provide greater transparency in instances where certain classes of legal content, applications and services are unavailable on a product; and
  3. re-affirmed that unreasonable traffic management practices will not be used to target and degrade the services of a competitor.

Net neutrality in Europe

Part of the European Commission’s proposals for a digital single market include a provision guaranteeing net neutrality. The proposal aims to end discriminatory blocking and throttling of the web, by setting out clear rules for traffic management. In March 2014, the European parliament voted on the Commission’s regulatory proposals passing the package of reforms with 30 votes to 12 (14 abstentions).

In February 2015, DCMS Minister Ed Vaizey MP commented on the Commission’s proposals in a letter to the European scrutiny Committee. Mr Vaizey explained that he supported the lack of specific details and definitions in the regulatory text as this flexibility future-proofed the regulations. But, he also highlighted that the Government would seek clarification that the regulations would not negatively impact upon the UK’s self-regulatory system.

Net neutral…but for how long?

EU and US regulators are both committed to ensuring net neutrality is adhered to, and are regulating accordingly. However, campaigners have already expressed their reservations about EU proposals. ISPs oppose the strictest net neutrality provisions. And some content creators have already begun to put in place paid-for arrangements to ensure their service isn’t compromised by ISP demand management.

So, while a net neutral, open internet is still a guiding principle for many of the web’s founders and content creators, whether it is possible, or for some even desirable, to maintain is still open to debate.

** For more background and details on this policy area, please see the Commons Library Briefing 7183—Regulating the web: The open internet and net neutrality

Author: David Hirst

Picture Credit: Sir Tim Berners-Lee at #WebWeWantFest by Southbank Centre; Creative Commons Attribution 2.0 Generic (CC by 2.0)