Five years after the adoption of the regulation enshrining net neutrality on the Old Continent, the Court of Justice of the European Union is beginning to give it a legal interpretation. It validates the analysis that "free traffic" (or "zero rating") as applied by operators constitutes a violation of net neutrality.
In 2016, the Body of European Regulators for Electronic Communications (BEREC) published guidelines on net neutrality which are binding on all its members. These guidelines make it very difficult in practice to use zero rating, even if it is not formally prohibited.
"Free traffic" is a commercial practice whereby an operator does not charge or account for the use of certain online services, even if they are used by the Internet user.
Although at first sight these offers may seem attractive, they pose various problems: the internet user does not have control over the choice of services selected. Above all, however, the zero rating could hinder or block access to rival platforms, thus distorting competition, according to the logic of commercial agreements between Internet access providers and content providers.
In this case, everything starts from Hungary with the Norwegian ISP Telenor, which proposed two access bundles with zero rating. Once the mobile data had been exhausted, Internet users could continue to use their access for the zero-rated services, while the other solutions were subject to a technical restriction by the operator.
After monitoring by the Hungarian Communications and Media Authority, it found that these subscriptions were in breach of the general obligation of equal and non-discriminatory treatment of traffic. It therefore naturally demanded that Telenor put an end to them.
However, the Norwegian ISP appealed to the court in Budapest and the latter asked the EUJC during the investigation to find out how to correctly read the European regulation establishing measures relating to open Internet access.
In the summary of the judgment, the ECJ stated that "the requirements of protection of the rights of Internet users and of non-discriminatory treatment of traffic preclude an ISP from favouring certain applications and services by means of offers which make those applications and services benefit from a zero tariff and subject the use of other applications and services to blocking or slowing down measures".
Nevertheless, is the European Court of Justice slashing the zero rating once and for all? Not really: the CJEU's call to order concerns very specifically decisions based on commercial considerations". Where measures to slow down or block traffic are based not on objective differences between the technical requirements in terms of quality of service for specific categories of traffic, but on commercial considerations, such measures are to be regarded, as such, as incompatible with the said provision", writes the CJEU Press Service.
A zero rating on a category of traffic or use may be envisaged by an operator. However, what is prohibited is selective zero rating.
Source : Numerama