Can the net neutrality be stopped?

BEREC guidelines on net neutrality: When the internet was saved again


by Prof. Dr. Hans Peter Lehofer


2/3: "Soft" zero-rating models remain possible

To a large extent, the guidelines read like a legal commentary on a newly created law: The ordinance and its recitals are cited in it, carefully reformulated and supplemented with a few cross-references, quotations and footnotes in order to make the brittle legal text more accessible. Examples are given where one is more or less certain, but when it comes to controversial issues one remains vague (e.g. "might" in para. 73, "could" in para. 115), referring to the comprehensive assessment of all relevant circumstances ("comprehensive assessment" , e.g. in Paragraph 46) or the necessary examination in individual cases ("case-by-case" in Paragraph 112) - and leaves the rest to the authorities and courts.

Nevertheless, the guidelines contain many useful explanations on the regulation and also some decisions that one would not have expected from BEREC - itself by no means a monolithic block of uniform interests. This applies, for example, to the "zero-rating" model, which is particularly important in the area of ​​the mobile Internet, in which the data consumption of certain applications is treated in a privileged manner compared to that of other applications. In any case, this should be clearly inadmissible if all normal applications are stopped or slowed down when the customer's monthly data volume is exceeded, while the privileged applications continue to run at full speed. Other variants of the zero-rating model (for example the one that the data consumption of the privileged services is not deducted from the customer's monthly data volume) should each be subjected to a comprehensive assessment, which should also take into account the market positions of those involved.

Special services: nothing precise is not known

On the second major issue, special services, the guidelines are a little more cautious. The requirement of a logical separation between special services and Internet access services contained in the BEREC consultation document in Paragraph 110 has been softened somewhat: this logical separation is now only an example (although for the time being the only one) for the permissible design of special services. The perplexity that characterizes the entire discussion about special services also shows through a little: we actually don't know which (upcoming) services we are talking about (Paragraph 112: "we do not know what specialized services may emerge in the future" ).

Currently only Voice over LTE, linear IP-based broadcasting services with special quality requirements and real-time health services are mentioned as possible use cases, as well as services of machine-machine communication and the somewhat cryptic "some" services mentioned in recital 16, which are in the public interest correspond".

The guidelines expressly state that the provision of special services does not require prior approval from the regulatory authority, but is just as much a matter of course as the completely content-free double reference to the Charter of Fundamental Rights in Paragraphs 20 and 82. However, this reference has the apparently desired symbolic character Effect: On, for example, one suspects that the reference in paragraph 20 of the guidelines "[could] become decisive at a later point in time when the European Court of Justice has to rule on net neutrality." In legal terms, one can only say: no, this reference will never be decisive, it has only been copied verbatim from recital 33 of the regulation - where it is just as superfluous. The ECJ will not decide whether the regulation actually respects fundamental rights on the basis of this recital, and even less on the basis of the repetition of the recital in the guidelines.