Net Neutrality and Internet Regulation: What Needs to Change?

Nina Cummins speaks on changes which will occur regarding net neutrality and internet regulation which will impact businesses and the digital world.

With net neutrality being a hot topic, what do you expect to occur in the next year regarding the debate into this area?

I see the next year being characterised by national telecoms regulators and businesses each pushing to gain a better understanding of how individual provisions in Regulation 2015/2012 (the “EU Net Neutrality Regulation“) and the associated BEREC Net Neutrality Guidelines apply to specific business proposals and new offers they are seeking to launch. Despite the intense debates, many operators and consumers have not experienced the ‘big bang’ effect some predicted. However, many businesses are still unclear about where parameters lie under the new neutrality rules especially with regards to new types of services or offers they are seeking to launch. In some cases, consumers are missing out, as operators don’t have sufficient regulatory certainty as to how new offers will be received by the relevant regulators and don’t want to become the first test case in the area.

Some of these uncertainties may be resolved through the recent consultation launched by BEREC (the body of European telecoms regulators).

How do you see the next year looking with regard to whether there should be more internet regulation?

I think it’s fair to say that the call for more internet regulation has started to sound like a battle-cry for many in this space, whether it’s additional competition, data privacy, telecoms, tax, or copyright rules as well as broader rules on liability for content. But there is a real danger that what has become a particularly emotive issue leads to unnecessary and inappropriate regulation that stifles innovation, diverts regulators from addressing ‘real‘ issues, and hurts the very persons intended to be protected i.e., the users of the services.

The debate here needs to move on from what is often being presented as a pure numbers game. The drive should not be for more regulation per se. We need to move the debate on from applying ‘old‘ rules to new technologies, and accepting that the ways in which we engage with the internet have evolved, and will likely continue to do so in the coming years.

There needs to be greater focus on what harms are occurring in the market, whether these are legal or economic harms (or a mixture of both) and not automatically assuming that more regulation is needed to address these harms. Self-regulation and/or co-regulation – which is not to be confused with giving internet companies free rein – coupled with the right parameters may be more successful.  Allowing legislatures and regulators to focus on any discrete areas where a more formal approach is needed. We should not be afraid of shifting focus from drafting new rules to considering whether the same results can be achieved by removing outdated rules.

Have the EU Commission’s digital single market proposals become something of a white elephant, with many being shelved and others stalled?

I’m sure those in the EU institutions working on the various initiatives can attest to a lot of work being done. And certainly with regard to certain files – such as the draft European Electronic Communications Code (“EECC“), there seems to be an almost never-ending stream of updates from working parties and stakeholders involved in the process.

What would not be good for businesses however, would be for panic to set in to get a deal done that then takes precedence over valid concerns about practicability i.e., operators’ ability to give effect to the legal text, and/or which undermines legal certainty and consistency. In the meantime, national telecoms regulators still have a job to do within their own jurisdiction. So, it’s not surprising that Ofcom in the UK has pushed ahead with its review of the general conditions of entitlement that attach to the general authorisation framework. UK businesses will be watching carefully over the coming months to see whether there are any significant divergences between the new UK conditions and the end-user protections that are finally negotiated in Title III of the EECC.

Nina is a recognised competition & communications regulatory specialist. She is a partner in the international digital specialist law firm, Osborne Clarke LLP, where she leads the UK telecoms regulatory practice. Truly passionate about all things tech, Nina combines in-depth knowledge of telecoms regulation with commercial pragmatism, and her sheer energy and enthusiasm for working with fast-paced, high-tech multinational clients. Nina is qualified as a solicitor in England & Wales, Northern Ireland, and Republic of Ireland. She is also qualified as a Rechtsanwältin (German lawyer).