Council of Europe recommendation on net neutrality

The Council of Europe, guardian of the European Convention on Human Rights (ECHR), adopted a recommendation on net neutrality in its meeting on 13 January 2016 (Recommendation CM/Rec(2016)1). The international organisation is calling on its members to take appropriate measures to protect and promote the rights to protection of personal data and the right to freedom of expression guaranteed in the ECHR.

The intention is specifically that Member States should take the necessary measures, in cooperation with all relevant stakeholders, to safeguard net neutrality as a guiding principle in their national legal frameworks. The guidelines listed by the Council of Europe in an appendix to the recommendation are intended to be taken as an example. These state the principle that all internet data traffic should be treated equally, “without discrimination, restriction or interference irrespective of the sender, receiver, content, application, service or device”. However, in line with the proviso typical for human rights and their weaker (only indirect) protection vis-à-vis private parties, the Council of Europe also specifies the limits of net neutrality. It states that appropriate traffic management is admissible in exceptional cases, for example if networks are congested or in order to preserve the integrity and security of the network or to implement court orders or orders by regulatory authorities. In addition, providers may offer minimum quality standards for special services as long as the general quality of the internet service for other users is not diminished and compliance with the requirements regarding protection of private life under the Convention are ensured. Internet providers should also point out to their customers clearly and transparently what forms of network management they use.

Thus the principles established by the Council of Europe largely resemble the EU’s rules on net neutrality adopted by the EU Parliament in the regulation “laying down measures concerning open internet access and amending Directive 2002/22/EC on universal service and users’ rights relating to electronic communications networks and services and Regulation (EU) No 531/2012 on roaming on public mobile communications networks within the Union” in October 2015. Unlike the EU Net Neutrality Regulation, the recommendation by the Council of Europe is of a purely programmatic nature and is not legally binding.

Further reading: Trilogue Strikes Deal on Roaming, EU Institutions Struggling to Agree on a Common Position on Net Neutrality and  Roaming