When the Media Gets It Wrong: The EU Parliament Actually Said No to Forcing Websites to Pay ISPs

By Barbara van Schewick on June 14, 2023 at 9:27 pm

On Tuesday, the European Parliament voted to adopt its annual competition policy report. 

Buried in a long list of non-binding competition policy recommendations, the report includes a late-added provision appearing to endorse the idea that websites and apps should pay internet service providers for delivering the movies, websites and data that Europeans customers request.

Press reports, including from Euractiv and Politico, claim that through this vote the Parliament endorsed the radical proposal by Europe’s largest telecoms to force some of the largest websites to pay fees to every European ISP. 

If true, that would have put the Parliament in opposition to Europe’s top telecom regulator BEREC and the majority of EU member states, which have rejected the proposal. 

 

However, those press reports are wrong. The Parliament voted to reject the ISPs’ proposal.

That’s because the Parliament voted to amend the original recommendation by adding the phrase “without prejudice to net neutrality,” leaving the final text to read:

“The European Parliament … calls for the establishment of a policy framework where large traffic generators contribute fairly to the adequate funding of telecom networks without prejudice to net neutrality.” (para. 44)

By making clear that any proposal can’t violate net neutrality, this language directly forecloses ISPs’ plans to require some of the largest online services to pay them. 

That’s because charging some online services but not others is a direct violation of net neutrality, as I explain in this blog post. 

The European Court of Justice made it painfully clear in two 2021 rulings that treating some traffic differently economically (e.g. charging only some apps) violates the EU’s net neutrality law just as much as treating some traffic differently technically (e.g. slowing down or blocking only some apps).

In its submission to the Commission’s recent consultation on the topic, Europe’s top telecom regulator BEREC reached the same conclusion: 

 

“If a mandatory payment was limited only to certain players…, it would go against the principle of net neutrality as set out in recital 1 of the [Open Internet Regulation]. This is because it involves treating traffic unequally, contradicting the principles of equal treatment and nondiscrimination enshrined in Article 3(3) of the [Open Internet Regulation].” (Appendix 4, pp. 14-15)

In other words, Europe’s largest telecoms want the Commission to help them get paid twice for some services – once by everyday Europeans watching a YouTube video and second by YouTube itself. 

But that violates net neutrality, and the European Parliament just voted to tell the Commission not to violate net neutrality in this matter.  

So when the European Commission publishes the submissions to the consultation and issues its report (reportedly by the end of June), it cannot use the Parliament’s vote as cover to call for mandatory network fees over the objections of BEREC and the member states. 

Perhaps that’s why the ISPs were fairly muted on social media after the vote, with the exception of a Telefonica lobbyist’s post on LinkedIn claiming a “mandate.”

We’ll see how the Commission tries to square this circle when it releases its report.

But when it does, journalists should pay close attention to the European Parliament’s clear directive not to violate net neutrality.

Barbara van Schewick is one of the world’s leading experts on net neutrality, a professor at Stanford Law School, and the director of Stanford Law School’s Center for Internet and Society.

Read more:

 

Add new comment