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50 Shades of Grey for Net Neutrality

Paris, 13 May 2016 — This week La Quadrature du Net was invited to participate to a workshop at the ARCEP1 in order to discuss the guidelines in the making by the BEREC and the new regulatory framework concerning Net Neutrality. While stressing the openness of the ARCEP, La Quadrature du Net deeply regrets that on such a crucial subject the negotiations were shadowy, without clear goals and keeping the possibility to by-pass Net Neutrality and thus threaten fundamental liberties.

Those guidelines are following the adoption in October 2015 of the regulation on telecommunication that leaves a large leeway for regulators to interpret it. Less than a month before the publication of the first draft of those guidelines, the orientation given by the BEREC isn't known yet and a number of organisations around the world are worrying. The risk is to have guidelines that will leave leeway to bypass the principles of an open and non-discriminatory Internet. The lack of transparency of the negotiations aren't favourable to trust the results of those negotiations.

During the workshop of the 11 May at the ARCEP, Sébastien Soriano2 talked about a "very large grey zone" especially concerning the interpretation given to commercial practices. Then, those that will need an action on the network (such as the Zero Rating) will be "dark grey" and will be subject to a strict evaluation. But our questions concerning the position of European regulators on a recent offer of Zero Rating by the operator Telia in Sweden, remains unanswered.

Commercial practices doubled to those offers, for example SFR Presse, will be in the "light grey" zone and will be evaluated through the competition law, benefiting from a better flexibility. But, such an offer infringes the principle of free choice for the user because the operator offers more accessible services and infringes the liberty to inform. All in all, a lot of questions remains pending.

The elaboration of guidelines cannot be appropriate with these "shades of grey" being only shades of uncertainty. It is crucial that regulators remain transparent, so they will be able to develop serenely their jurisprudence during their future actions. As we do not have other choice than to judge by the facts the reality of Net Neutrality, this is why the starting lines should be as clear as possible and let as little doubt in their interpretation.

Some points seem to reach a consensus, for example parental control which is part of traffic management activities only acceptable if they are done under control of the end-user.

La Quadrature du Net wants to stress again the blatant shortfall of the transparency in the process of elaboration of those guidelines when a real public debate could have been launched by putting forward a consultation much earlier. We urge the citizens not to wait for the short official consultation of six weeks in June to answer to the one launched by the group of NGOs Save The Internet. We also call on citizens to report technical and commercial violations of Net Neutrality on Respect My Net.

  • 1. The ARCEP is the French regulator authority of electronic communications and postal services
  • 2. Sébastien Soriano is the president of the ARCEP