Net Neutrality: An Encouraging Report From the French Parliament
Paris, April 12th, 2011 - The trans-partisan parliamentary mission led by Laure de la Raudière and Corinne Erhel just released its report on Net neutrality1. This encouraging report calls for preserving the Internet's universality and protecting end-users' fundamental freedoms, and should be considered a template for other European public authorities. That said, while this document offers an important reflection on the evolution of our legal framework to protect fundamental rights and foster the digital economy, it must be followed by actions. La Quadrature du Net publishes an unofficial translation of the report's introduction.
The report puts forward sensible proposals and principles and is an important step towards the legal protection of Net neutrality, a core concept of the Internet. While Internet access providers claim that neutrality violations (and thus violations of free competition and end-users' freedoms) are justified by their network investments costs, the report wisely chooses to separate these two issues. The mission also timely questions the legitimacy of blocking and filtering measures (which amount to Internet censorship, such as that established by the French LOPPSI and ARJEL laws). According to the report, blocking measures deserve further questioning “despite their apparent legitimacy, due to their inefficiency and the adverse effects they may lead to”2.
This document must serve as a template for the European Commission, which will soon deliver a report on Net neutrality. It could also help EU Member States in their transposition of the “Telecoms Package”. The latter needs to be complemented in order to effectively protect freedom of information and communication on the Internet.
“We are thankful for the excellent work of Laure de Raudière and Corinne Erhel's trans-partisan mission. The report reveals a deep understanding of the technical, social, economic and political realities of the Internet, and of the huge importance of preserving its universality. The rapporteurs stress the importance of protecting Net neutrality, which is the guarantee of online freedom, refusing to sacrifice it in the name of telecoms operators' economic interest”, says Jérémie Zimmerman, co-founder and spokesperson of the citizen advocacy group La Quadrature du Net.
“While the mission's report seems to establish a counterpoint to Nicolas Sarkozy's repressive Internet-related politics, it must now be followed by actions. The MPs emphasize how Net neutrality makes society more democratic and our economy more open, but these conclusions must now be put into action quickly, beyond mere electoralist politics.” concludes Zimmermann.
Article 11 of the French Declaration of Human Rights declares “freedom of Speech and of Opinion”. What medium today respects these principles better than the Internet? We must thus act in order to protect the astounding progress for society the Internet represents:
- democratising access to knowledge, similar to the revolution brought by the printing press;
- citizen participation to political debates;
- simple dissemination of new ideas;
- fast spreading of new technologies;
- universal trading of goods and services;
- easier cooperation among different parts of all sizes within industry sectors
- economic development of SMEs
All these opportunities, reaching many areas of activity, are growth-providing opportunities France must seize. Already today, in Europe, a quarter of growth and job-creation comes from the digital economy, and it accounts for 40% in productivity growth. All these challenges require certain rules in order to protect the universal Internet, a vast commons, which must not be transformed at the whim of its different stakeholders' interests… This is a political, economic and social objective. A very passionate climate surrounds the emergence of the Net neutrality debate. It appeared in the early 2000s in the USA, in a context where cable operators tried to maintain their local monopolies.
In Europe, because of stronger sector-based regulation, the debate only developed in 2008 when the third Telecom Package was examined. But today, the growth in traffic and the pressure to establish blocking measures clearly put neutrality at risk.
The Assemblée Nationale's 3 Economic Affairs' Committee's fact-finding mission audited over a hundred stakeholders, published a preliminary report on the 27th of January 2011, collected the opinions of these stakeholders and organised extra auditions on subjects in need of further analysis. Building on this work, it offers nine pragmatic propositions, balancing the absolute necessity to guarantee access to a neutral and universal Internet with the potentialities that innovation in networks make possible: interests which sometime oppose and need to be carefully regulated.
Summary of proposals:
The first axis of proposals is to protect the Internet by explicitly placing it in the field of electronic communications regulation. There exists a risk today of seeing non-neutral behaviours develop, which would diminish end-users capacity to chose how they use the network. To prevent this risk, it is proposed to give legal reach to the Net Neutrality principle, making its promotion a general goal for regulatory bodies (which is the purpose of the first axis), and, more specifically, by establishing guarantees on the most contentious elements (which is the purpose of the following axes). Proposal #1 defines in legal terms Internet Neutrality, and proposal #2 makes its promotion a goal for regulatory bodies.
The second axis of proposals is to avoid forcing telecoms operators from blocking electronic communications as much as possible, considering that blocking has direct negative side effects (restrictions to the freedom of speech or communication) as well as indirect ones (over-blocking, development of cryptography, etc.). These negative side effects are not always properly taken into account in legislative decisions. Furthermore, the splintering of legal bases (2004's LCEN 4, 2010 online gambling law, the intellectual property code) leads to confusion. This is why it is proposed to further question the justifications of legal blocking measures, despite their apparent legitimacy, due to their inefficiency and the adverse effects they may lead to (proposal #3), and to establish right away a systematic judiciary intervention for pronouncing compulsory blocking measures, so as to better protect freedom of speech (proposal #4) 5.
The third axis of proposals is to keep the Internet the open platform it is today. The risk comes from the fact that the quality of the public Internet could quickly degrade because of the important growth in data streams, if Internet access providers were not to invest in their networks or to give priority to the commercialisation of managed services. Strengthening consumers' freedom of choice seems to be the first solution in facing this risk: in the absence of market failure, it seems sufficient, in order to protect this freedom of choice, to ensure proper transparency on Internet access by reserving the “Internet” label only to neutral access offers (proposal #5) and by creating an Internet quality observatory (proposal #6); in the hypothesis where competition would not allow consumers to opt for a neutral Internet access at a reasonable price, the consumers' capacity to choose should be reestablished through more restrictive measures by forcing upon Internet access providers requirements guaranteeing Internet quality (proposal #7).
The fourth axis of proposals aims at maintaining a proper economic balance between the different categories of stakeholders so that the whole Internet ecosystem may continue to develop and innovate, while guaranteeing that network investments costs are covered, so as to maintain a quality Internet. The risk here comes from the asymmetrical growth in Internet traffic which, added to the capped price6 paid by consumers and the arbitrary aspect of financial flows on two-sided markets, entail strong uncertainties regarding the evolution of the relationships between the different stakeholders and the sustainability of their business models. One must ensure that, if Internet access providers are to offer Internet access of sufficient quality, their economic models will allow them to do so. The creation of a “data call termination” which would cover the networks' variable costs is, according to the information collected by the mission, an interesting lead. Further reflection is needed on these issues as knowledge of Internet-related markets is still scarce (proposal #8) and the opportunity of applying this solution requires careful assessment (proposal #9).
► First axis: enshrine Internet Neutrality as a political goal
Proposal #1: define the Net Neutrality principle
Proposal #2: establish promotion of Net Neutrality as a political goal and give regulatory authorities the power to impose obligations suited for its promotion
► Second axis: strict supervision of Internet blocking
Proposal #3: further question the justifications for legal blocking measures, despite their apparent legitimacy, due to their inefficiency and the adverse effects they may lead to
Proposal #4: establish immediately a unified procedure which includes the intervention of a judge
► Third axis: protect the Internet's universality and guarantee its quality
Proposal #5: reserve the “Internet” label to offers which respect the neutrality principle
Proposal #6: create an Internet quality observatory
Proposal #7: assign Arcep (national regulatory authority) the mission of guaranteeing an Internet of sufficient quality
► Fourth axis: ensure sustainable financing of the Internet
Proposal #8: study the economic stakes attached to the Internet network
Proposal #9: carefully assess the creation of a European “data call termination”
- 1. Translation in English: http://www.assemblee-nationale.fr/english/dossiers/net_and_network_neutrality.pdf
- 2. Proposal #3: "Further question the justifications for legal blocking measures (…) "
- 3. French Lower House of Parliament
- 4. French transposition of e-Commerce directive on liability of Internet service providers.
- 5. Note: Since the vote of the LOPPSI law, France imposes the blocking of access to websites alleged of distributing child abuse material upon administrative order, without a judicial ruling.
- 6. Note: French broadband is among the cheapest in the world, with a monthly price of 30€ for triple-play broadband offers.