Despite claiming to support net neutrality, the European Commission (EC) has been criticised for not going far enough in its latest report released Tuesday.
Setting out her future plans, Digital Agenda Commissioner Neelie Kroes stopped short of advocating legislation to ensure an open Internet, instead adopting a wait-and-see approach.
"At the end of 2011, I will publish the results, including any instances of blocking or throttling certain types of traffic. If I am not satisfied, I will not hesitate to come up with more stringent measures, which may take the form of guidance or even general legislative measures to achieve the competition and choice consumers deserve. If this proves to be insufficient, I am ready to prohibit the blocking of lawful services or applications," she said.
However, advocacy group, La Quadrature du Net, which promotes the rights and freedoms of citizens on the Internet, described the EC's report as "extremely disappointing" and said Kroes was "hiding behind false liberal arguments that could undermine the freedom of communication and innovation in the digital environment".
"This report fails to offer a policy protecting the free, open and neutral Internet," said Felix Tréguer, records management officer at Quadrature du Net.
There is no set definition of "net neutrality" in the European Union, but it will be a legal requirement when the new Telecoms Package comes into force on 25 May. This new law, which sets out rules on transparency, quality of service and the ability to switch operator, must be applied in a way "that ensures open and neutral Internet principles are respected in practice". However, it does not specify how member states may achieve this, leading to confusion in some countries about how to adopt the law.
In principle, the Telecoms Package, agreed to in late 2009, says that broadband connections must be as fast as indicated by ISPs' advertising. "Customers should not be hoodwinked by misleading claims about connection speeds," said Kroes. "In particular, customers should know the range of realistic connection speeds they will be getting - not some hypothetical 'up to' speed that in practice they would only get if they lived next door to the exchange or if no one else in their neighbourhood were using the Internet at the same time."
This implies that no provider can prioritise traffic on the Internet for economic reasons. However, the Body of European Regulators for Electronic Communications has reported that the majority of member states' national regulators received complaints about discrepancies between advertised and actual delivery speeds for an internet connection.
Internet speeds can be reduced by so-called blocking or throttling of traffic. Blocking restricts access to certain services or websites, for example voice-over-IP. Throttling slows down certain types of traffic and affects, for example, the quality of video streaming. The commission's report shows that there has been unequal treatment of data by certain operators.
However, Kroes insisted that traffic management is necessary to ensure the smooth flow of Internet traffic, particularly at times when networks become congested. But advocates of net neutrality are worried that allowing ISPs to engage in traffic management leaves the door for potentially unfair and discriminatory traffic control on the Internet.
Even Kroes appeared to accept that some blocking was likely: "I do not like the blocking or degrading of certain services. But if there is such blocking or degradation, then the customer needs to be clearly informed in advance so that they can make an informed choice about the operator that gives them what they want. It is clearly not okay to block or degrade lawful services by stealth, without informing the customer."
But La Quadrature du Net says that the situation in the EU is already out of control and points instead to a recent report by the French Parliament's Economic Affairs Committee, which called for the preservation of the Internet's universality and protecting end-users' fundamental freedoms.
The report puts forward sensible proposals and principles and is an important step toward the legal protection of net neutrality, a core concept of the Internet. While Internet access providers claim that neutrality violations are justified by their network investments costs, the report wisely chooses to separate these two issues, according to La Quadrature du Net.