Net neutrality: defending the internet “as we know it” is not enough

September 21, 2022

An open letter signed by four major European telecommunication companies has revived the debate from ten years ago about the concept of “sending party pays.” In the letter, the telecoms urged the Commission to propose legislation requiring companies that provide online content to cover a portion of the costs of digital infrastructure. This proposal has triggered some strong reactions. One of the criticisms is the claim that the fees will harm the internet “as it is.”

In a letter signed by 44 MEPs, parliamentarians argue that access fees pose severe risks to the internet “as we know it.” Several civil society organizations warned the Commission one month earlier against sacrificing the “free and open internet to the short-sighted and self-interested demands of the telecom industry.” More recently, Joan Barata, Intermediary Liability Fellow at the Program on Platform Regulation of Stanford Cyber Policy Center, explained on the Verfassungsblog that

“compelling providers of content, services, and applications to negotiate financial contributions with ISPs [Internet Service Providers] in exchange for using their infrastructure to reach end users would violate the current provisions of the Open Internet Regulation and, more broadly, be incompatible with the concept of NN [net-neutrality] itself.”

Barata further warned that

“(…) if the new regulatory scheme is adopted, and the core idea of NN is thus abandoned, we must expect a shift from an open ecosystem where, at the very least, users have the opportunity to get equal access to the content, services and applications of their choice, to an environment managed on the basis of non- transparent and commercially driven agreements among major players.”

That last statement shouldn’t raise any issues. However, if we replace its last four words with the word “algorithm,” we have a pretty accurate description of the internet “as it is.” This is why the argument that we need to protect the internet “as we know it” might raise a few eyebrows. To better understand the challenges to net neutrality, it is helpful to make a distinction between net neutrality as a value and net neutrality as a legal obligation that is enforced on ISPs.

As a legal requirement in the EU, net neutrality is laid down in article 3 of the Open Internet Regulation, which says that:

“providers of internet access services shall treat all traffic equally, when providing internet access services, without discrimination, restriction or interference, and irrespective of the sender and receiver, the content accessed or distributed, the applications or services used or provided, or the terminal equipment used.”

In that sense imposing fees on the sending party would indeed mean the end of net neutrality.

As a value, net neutrality is rooted in the belief that the internet should be a place for the free and open exchange of information. With the platformization of the web, this view of the internet has already been severely damaged.

Tim Wu, a professor at Columbia Law School who is often said to have coined the phrase “net neutrality,” highlighted in 2003 that one of the arguments in favor of this concept was that:

“Email, the web, and streaming applications are in a battle for the attention and interest of end-users. It is therefore important that the platform be neutral to ensure the competition remains meritocratic.”

These days, the battle for attention plays out at a different layer of the internet stack. When Tim Wu wrote the paper where he unpacked the concept of net neutrality, ISPs were the major gatekeepers of the free and open internet. This has changed with the rise of commercial platforms. We are all aware of this change, but this awareness did not penetrate the debate on net neutrality.

There are some good reasons for keeping the discussion about net neutrality and the one on the domination of internet platforms separate. Fighting too many fights at once might not be wise, and addressing too many issues might make the argument too complicated and messy. However, the idea that the EC must preserve the internet “as it is” simply does not sound right. There are too many things wrong with the internet as it is to take this argument seriously.

Back in the early 2000s, anticipating the conflicts between the private interests of broadband providers and the public interest in a free, open, and competitive online environment, the idea of net neutrality emerged. A few years later, despite the well-developed understanding of the harms caused by platformization and the efforts toward addressing them (e.g., the obligations imposed on platforms by the Digital Services Act), we have not yet managed to introduce sufficient safety measures when it comes to internet platforms.

Net neutrality was meant to ensure that businesses may find new customers, that innovators can create new services, and people are free to use whichever apps and websites they choose. The rules on net neutrality have managed to protect these interests at the lower layers of the internet stack. As a result, we ended up in a paradoxical situation: the Big Tech firms, who were once shielded by the concept of net neutrality from abuses of power by the telcos, are now in the position to deny smaller firms access to the financial benefits of the Internet market.

All of this does not imply that the idea of “sending party pays” is a good one. On the contrary, if implemented, it would contaminate the lower layers of the internet stack with the disease we are fighting on the levels of platforms.

What the EU needs to do instead is to introduce net neutrality-like measures to deal with the issues that occur in the space, which is now dominated by commercial platforms. These tools ought to foster interoperability, which would support the creation of new digital ecosystems with a stronger role of public and civic actors. Instead of focusing solely on fixing the platforms, the EU must introduce measures that would allow the emergence of alternatives to the current fundamentally flawed system of “online malls.”

Zuzanna Warso
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