Recent preliminary ruling from the Court of Justice of the European Union, taken in relation to a decision against Telenor Telecommunications company, interprets net neutrality rules for the first time.
The CJEU issued their preliminary ruling after the Hungarian National Media and Communication Office found the ‘zero tariff’ packages offered by Telenor, an internet service provider, breached Article 3 (3) of Regulation 2015/2120 of the EU Parliament, with regard to the general obligation of equal and non-discriminatory treatment of traffic , or net neutrality as it is more commonly known.
Under the law, neither restrictions, nor special access can be applied on the basis of one’s internet package.
This ruling will prevent Telenor from providing these separated packages and all applications are to be treated equally under the law. Neither restrictions, nor special access can be granted or denied on the basis of one’s internet package. The CJEU deemed in its preliminary decision that to achieve this, the application of Article 3 (2) makes it so that these policies implemented by companies are subject to review by national authorities and courts to maintain net neutrality and lawful practice.
Data plan policies like these create unfair market advantages and also violate the rights of the end user.
The unfair advantage of only certain apps being limited while others were considered ‘zero tariffs’ infringes on the open internet concept and skews the market share of internet applications towards the zero tariff applications. This affects the market significantly, as the repercussion of not using zero tariff applications results in higher expenditure on internet services or limited access to the internet. This is in clear violation of the rights of the ‘end user’ and the agreements and contracts constructed by the internet company would have to be restructured to be inclusive of all apps.
Article 3 (3) states that the blocking or limiting of an app, may be somewhat viable if a technical or objective reasoning behind the limitation can be provided, on the basis that it is done fairly, however it was found that the choices made by the Telenor company were strictly on a commercial/financial basis making it a clear violation of Article 3 (3)
The purpose of net neutrality is to eliminate unnecessary advantages being given to or taken away from companies or end users.
These preliminary hearings are to be finalized by the national courts of Hungary despite the clauses being defined in the European parliament. However the decisions are more than likely to be based on the recommendations in accordance with the 2015/2150 Regulations of parliament. Net neutrality seeks to make it so that there are no unnecessary advantages given to or taken away from companies or end users. To achieve this accordance the constant reexamining of companies such as the Telenor Telecommunications are built into the legislation to provide the framework for constant and regulated change, and proper balance within the EU member states between consumer protection and economic/commercial freedom.
“Whereas zero rating does not result in the technological discrimination of traffic while the user has their data allowance available, the Court of the EU correctly pointed out that such discrimination might be exactly what happens after the allowance has been used up,” comments Dr Bostjan Makarovic, Aphaia Managing Partner.
Are you worried about the impact this ruling might have on your telecommunications business? Aphaia provides regulatory policy advice to some of the world’s top telecommunications providers. Aphaia also offers both GDPR and Data Protection Act 2018 consultancy services, including data protection impact assessments, and Data Protection Officer outsourcing. We can help your company get on track towards full compliance. Contact us today.