At the end of this first quarter of 2022, the European Commission, via its Commissioner for the Internal Market Thierry Breton (also former CEO of France Telecom from 2002 to 2005 and of Atos, European leader in the cloud, from 2009 to 2019) announces by the end of the year an initiative for the major digital content platforms to participate in the cost of the infrastructure of the communication networks.
This particularly targets the few platforms that cumulatively occupy more than 50% of the world’s bandwidth. There is even talk of making this project one of the main projects in the digital space, following the Digital Markets Act (DMA) and the Digital Services Act.
Under cover of fairness in terms of investment financing, this declaration seems in any case to call into question the principles of Net neutrality, so far dear to the European authorities.
Net neutrality, an immutable principle?
As a reminder, a lively debate has been taking place since the 2000s around the notion of an “open” network and Net neutrality. The debate was provoked by the blocking or slowing down of certain flows by operators, which provoked strong reactions and subsequently a promulgation of principles of neutrality to regulate behaviour.
There are several more or less similar definitions of net neutrality, and their applications vary greatly depending on the country (and over time, with in particular under the Trump administration in the United States a questioning of the principles previously adopted).
In the European Union, under the provisions of the Open Internet Access Regulation 2015, users have the right “to access and distribute information and content, and to use and provide applications and services and to use the terminal equipment of their choice, regardless of the location of the end user or the provider, and regardless of the location, origin or destination of the information, content , application or service, through their Internet access service”.
Access providers therefore have a duty to treat “all traffic equally and without discrimination, restriction or interference, regardless of the sender and recipient, the content consulted or broadcast, the applications or services used or provided or the terminal equipment used”, even if exceptions remain authorized within specific frameworks. Commercial considerations cannot therefore justify differential treatment, as confirmed by the Telenor judgment of the Court of Justice of the European Union in November 2020.
These principles of neutrality seem or at least seemed irremovable for the European authorities, hence a certain surprise in the face of Thierry Breton’s recent statement. Indeed, if certain content platforms were to participate in the financing of the infrastructure, would this not mean that the transmission of their packets would become chargeable, unlike other providers, which would constitute discrimination?
Moreover, can we imagine that those concerned would pay, in exchange for nothing? Would they be tempted to demand preferential treatment of their flows? Conversely, if these same platforms refused to pay, would they be blocked or their quality of service deteriorated, resulting in unequal treatment in the network?
The resumption of the arguments of the network operators
However, for Thierry Breton:
“The rules in place for twenty years are running out of steam and operators no longer have a good return on their investments. It is necessary to reorganize the fair remuneration of the networks. »
It may be noted that making certain providers pay was very precisely the argument developed in the 2000s by Ed Whitacre, the CEO of AT&T, a major access provider in the United States, when he declared that content providers who are sometimes remote and connected to the Internet via another provider accessed AT&T’s network free of charge to reach users, and therefore had to pay AT&T a contribution to the necessary investments in network infrastructure. But this is also precisely what has raised a series of reactions from user associations and content providers, fearing that the traffic concerned will be blocked or curtailed, and has led to the definitions of net neutrality and to their application throughout the world. The main goal: to prevent network providers from modifying the main principles of freedom and the open Internet. The novelty today would then be to be limited to “big” content providers.
This investment-related argument echoes those of the network operators. The latter claim that the large providers have a large share of the revenues generated through the Internet and a growing stock market capitalization, and that there is an asymmetry in financial and negotiating power between platforms and operators; they also argue that these same suppliers do not participate in the infrastructure even though they are the main users, or that the increased use of the network leads to a form of “tragedy of the common good”, a well-known phenomenon in economics which explains the negative consequences of entities seeking selfish profit on the use of common and free resources.
We are therefore led to wonder about the more political reasons that explain this reversal. It is indeed time for a profound reform of the regulation of digital technology and its platforms, or even a paradigm shift. During the maturing phase of the development of the new rules, it was not expected that the power of the big platforms would be tackled so head-on in a context of promoting European digital sovereignty. .
Both the Digital Markets Act and the Digital Services Act provide for specific obligations for certain categories of players, access controllers in the case of market regulation and very large platforms in the case of the regulation of contents. The DMA, for example, contributes to neutrality by providing that the behavior of access controllers must not compromise the rights of end users to access an open Internet.
This regulation is asymmetrical, in that it distinguishes different categories of actors. Thierry Breton believes that the reorganization of the information space having been completed, it is now necessary to worry about the infrastructures. Does the asymmetry of the rules therefore have its place? We can doubt it if we make a strict application of the principle of net neutrality, but we can qualify things by remembering that the regulation of telecommunications is partly based on asymmetrical rules, in the form of reinforced obligations weighing on the operators exercising a significant influence on such and such a market.
In any case, either we consider that Net neutrality is threatened by the draft contribution, or we take note of the fact that it must be reconciled with a principle appearing in the recent declaration of digital rights and principles, that according to which all market players must participate fairly and proportionately in the costs of public goods, services and infrastructure. On a related subject, we find this principle of fairness in the European Commission’s data bill (Data Act). This text aims to “guarantee fairness in the distribution of the value of data between the actors of the data-based economy”.
Once again, the aim here is not to be pro or against neutrality, but to question the reasons for the change of vision of the European Commission, and its ambiguity in the face of the principles it had even established. The new principles set out, of equitable participation in the cost of goods, could moreover be interpreted in the opposite direction to that initially planned: should operators not participate in the financing of the creation of content, which enables them to attract subscribers?
By Patrick Maillé, Professor, IMT Atlantique – Institut Mines-Télécom; Annie Blandin ObernesserProfessor of Law, IMT Atlantique – Institut Mines-Télécom and Bruno TuffinInria Research Director, Inria.
The original version of this article was published on The Conversation.