The past weeks, the Dutch parliament has been discussing net neutrality. If all goes well, The Netherlands will be the first country in Europe to launch net neutrality legislation. But what does the text look like, and what is the latest state of play? Here is a summary.
Last week, a proposal to enshrine net neutrality in the law was launched in the Dutch parliament (see below for an unofficial translation, also of the explanatory memorandum). It was discussed on June 8th in a plenary debate in the parliament, and the Dutch government then expressed its support for this proposal. It was supposed to be put up for vote on June 14th, but this vote was postponed for one week. This means that we expect the proposal to be voted for on 21 June. Unfortunately, we are not yet sure whether a majority will vote in favour, but it looks promising.
Meanwhile, an amendment to the original proposal above was launched on 14 June, which ostensibly aims to allow filtering of the internet for religious purposes (see also below for a translation). Our analysis is that this is not necessary, as the “original” amendment does not prohibit the application by the user of filter services for such purposes (as long as they can be turned off at will).
We thus expect to bring more news on these developments on the 21st of June.
Proposal for net neutrality provision: Article 7.4a Telecommunications Act (unofficial translation)
1. Providers of public electronic communication networks which deliver internet access services and providers of internet access services do not hinder or slow down applications and services on the internet, unless and to the extent that the measure in question with which applications or services are being hindered or slowed down is necessary:
a. to minimize the effects of congestion, whereby equal types of traffic should be treated equally;
b. to preserve the integrity and security of the network and service of the provider in question or the terminal of the enduser;
c. to restrict the transmission to an enduser of unsolicited communication as refered to in Article 11.7, first paragraph, provided that the enduser has given its prior consent;
d. to give effect to a legislative provision or court order.
2. If an infraction on the integrity or security of the network or the service or the terminal of an enduser, refered to in the first paragraph sub b, is being caused by traffic coming from the terminal of an enduser, the provider, prior to the taking of the measure which hinders or slows down the traffic, notifies the enduser in question, in order to allow the enduser to terminate the infraction. Where this, as a result of the required urgency, is not possible prior to the taking of the measure, the provider provides a notification of the measure as soon as possible. Where this concerns an enduser of a different provider, the first sentence does not apply.
3. Providers of internet access services do not make the price of the rates for internet access services dependent on the services and applications which are offered or used via these services.
4. Further regulations with regard to the provisions in the first to the third paragraph may be provided by way of an administrative order. A draft order provided under this paragraph will not be adopted before it is submitted to both chambers of the Parliament.
5. In order to prevent the degradation of service and the hindering or slowing down of traffic over public electronic communication networks, minimum requirements regarding the quality of service of public electronic communication services may be imposed on undertakings providing public communications networks.
Additional article regarding transition
Article 7.4a of the Telecommunications Act will not apply to agreements concluded before the entering into force of that article for up to a year after the entering into force of that article.
Proposal to allow for religious filtering (unofficial translation), to be inserted in paragraph 1:
e. to comply with an explicit request of the subscriber to hinder services or applications on the basis of ideological motives specified by the subscriber, provided the provider does not give the subscriber a monetary or other advantage for this permission.
Explanatory memorandum to original provision(Please let us know if you want to propose a better translation in the comments below.)
End-users should be able to decide what content they want to send and receive, and which services, applications, hardware and software they want to use for such purposes (in accordance with paragraph 28 of Directive 2009/136/EC). The original article 7.4a proposed by the Minister can not adequately ensure this, because it allows providers to restrict access to websites or services. Internet Service Providers will increasingly take measures to hinder or slow down Internet traffic, either at their own initiative or under pressure from third parties, unless this is prohibited. This amendment is intended to replace Article 7.4a Telecommunications Act proposed by the Minister.
The amendment aims to maximise choice and freedom of expression on the Internet for end users. The term “Internet” refers to the global, world wide network of endpoints with IP addresses assigned by the Internet Assigned Numbers Authority. It is not intended to prohibit the “reservation” of bandwidth for IP-based services which are offered through its own network, including IP-based television that is not offered via the Internet: these are no services or applications on the Internet. The term Internet should be interpreted broadly, however, to ensure that providers cannot circumvent the scope of this provision. The term “provider of an Internet access service” refers to the term as used in the appendix under Article 13.2a of the Telecommunications Act.
It is clear that the term Internet access service should be interpreted broadly, to prevent circumvention of this provision. If access to websites, multiple services or applications, including apps, is offered, this should at any rate be considered an Internet access service. It is, therefore, at at any rate not allowed to offer a service consisting of access to (certain) web pages, services or applications, where the use of certain applications or services are blocked or priced differently. This means that providers are allowed to offer separate services over the Internet, but may not offer packages to access a part of the Internet. Of course, providers may differentiate their subscriptions for internet access or in other ways, such as bandwidth and data limits.
This restriction on the behavior of providers of Internet services is necessary to ensure open and unrestricted access to the Internet for (online) service providers, citizens and business. It should be prevented that Internet access service providers block or restrict specific information or services.
The amendment prohibits the hindering or slowing down of services or applications on the Internet. This means firstly that a provider may not hinder or slow down a service or application of a specific party. It also means that the provider may not hinder or slow down any specific service or application, such as Internet telephony. The amendment seeks inter alia to prevent the damage a user suffers by breach of the standards contained herein.
To avoid misunderstanding, applicants would like to emphasize that the providers under this article are allowed to provide separate services over the Internet. This allows the provider to offer a separate subscription for mobile VoIP calls instead of the regular cell phone (think for instance of a VoIP mobile phone subscription). Although this service is provided over the Internet, it is not a service intended to provide access to Internet. Such a service is not an Internet access service as defined in this article, but a telephone service. In these cases, it allowed to block the remaining internet traffic (in the case of a VoIP-only subscription all traffic that is not used for VoIP).
Only in certain, limited cases as described in Article 7.4a, first paragraph sub a to da, an exception may be made to the principle that ISPs may not hinder or slow down traffic from end users. Those exceptions must also be interpreted narrowly, whereby the assessment of the necessity must be based on criteria of proportionality and subsidiarity which are similar to criteria established in the context of the application of the European Convention on Human Rights.
The exception under a aims to ensure that in case of congestion, traffic which should be passed without delay (such as VoIP) can be passed quickly, and that in such a case other traffic may be delayed. Few measures will in the opinion of the petitioners be deemed necessary. The most effective method to combat the effects of congestion is indeed to avoid congestion. Providers can avoid congestion in the first place by adequate investment in capacity. However, if there is congestion, then the measures under this exemption are designed to encourage end-users continue to have maximum access to information, disseminate information and use applications or services. Providers may under this exception only take measures which are not discriminatory, so providers must treat the same or similar services equally. It is to be expected that a heavier service will be delayed first. The measures should be removed as soon as there is no congestion anymore.
The amendment does not seek to prevent the provider from applying necessary network management in order to ensure proper transfer and access. In addition, the provider in the case of congestion may prioritize proportionally the traffic of Internet subscribers with high bandwidth over the traffic of Internet subscribers with a lower bandwidth, in proportion to the difference in bandwidth between these subscriptions.
The exception under b is aimed at blocking traffic which affects the safety or integrity of the network or the terminal of the end user (as discussed in the above mentioned paragraph 28). Traffic which affects the safety or integrity of the network, can for example be traffic from computers that are part of a botnet and which is used for a distributed denial of service attack. Violations of the security or integrity of the terminal are for example traffic used by a hacker without authorisation of the user views, copies or manipulates files on the PC. Again, a measure must be proportionate, so must be restricted to only the traffic that affects the security or integrity, and should no longer be in force if the traffic is not being transmitted anymore. The term “integrity and security” should be interpreted narrowly and does not protect interests of third parties. The measures for the integrity and security of the service and network also include the blocking of outbound spam by the provider.
The exception under c is designed to make it possible to block unsolicited commercial communications such as spam.
The exception under d is designed to allow for the situation where providers are required by statute to hinder or slow down to certain traffic, or are required to do so under a court order.
The second paragraph seeks to ensure that a measure which safeguards the integrity or security of a network or service is protected with sufficient procedural safeguards. Internetproviders under this paragraph would for example only be allowed in limited cases, to block traffic from botnets within its network, when they have informed an end user from whose computer the traffic originates, an opportunity to take action to stop the transmission of the traffic. This is intended to prevent the undesirable situation where a company network is shut off from the internet if a provider has determined that within this network there is a computer that is part of a botnet. The administrator of the company will then first have the opportunity to turn the infected computer off itself.
The third paragraph is intended to prevent Internet service providers to charge prices which result in restrictions of access to specific services or applications on the Internet. This still allows for the charging of different prices for different types of bandwidth. Under this paragraph, providers are prohibited from charging a higher price for Internet access where internttelephony is used than for Internet access where it is not the case.
To avoid misunderstanding, the authors would like to emphasize that it is permissible to offer an Internet access service in conjunction with filtering software or technology, for “parental controls” or filtered Internet for religious communities and schools. To prevent circumvention of the principle of net neutrality, the provision, quality or the rate of Internet access service may not depend on whether the filtering software or technology is used. The subscriber must be free to obtain the Internet access service without the filtering software.
Latsly, it remains possible to provide a mobile Internet access service to customers in the Netherlands alone, and not abroad. This may be attractive to a subscriber which would like to avoid data roaming costs abroad.
The fourth paragraph makes it possible to make further rules regarding the provisions in the first, second and third paragraph. In the case of (at the time of establishment of this article as yet) unforeseen circumstances it may be necessary to to clarify or specify the first to third paragraph. For such legislation, only clarifications of the first to the third paragraph may be arranged. This regulation at a lower level may not introduce additional exceptions to the principle of net neutrality. These rules must be filed beforehand at the parliament.
The fifth paragraph was proposed by the government to implement Article 7.4a.
Article VIb proposes a transition regime for Article 7.4a. Article 7.4a as it is replaced after the effective date will apply to all contracts for an Internet access service. In the interest of legal certainty, and in order to give the providers a reasonable time to comply with this obligation, it is proposed that existing agreements are exempt from Article 7.4a. This transition is valid for one year after the effective date. The obligation to act in accordance with Article 7.4a is valid for all contracts to supply an Internet access service after the date of entry into force of section 7.4a and agreements concluded after that date (automatically) be extended or renewed. Of course, providers remain free to offer subscriptions before entry into force of section 7.4a which already comply with Article 7.4a in anticipation of the enactment.