EUROPEAN COURT UPHOLDS “NET NEUTRALITY”

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EUROPEAN COURT OF JUSTICE copyright wikipedia.org

The European Court of Justice backed EU net neutrality regulations Tuesday in a judgment interpreting the rules.

FACTS

The services offered by Telenor to its potential customers include two packages known as ‘MyChat’ and ‘MyMusic’, respectively.

 ‘My Chat’ is a package which enables subscribing customers, first, to purchase 1 GB of data and use it without restriction until that data has been used up, accessing freely the available applications and services. Moreover, the use of six specific online communication applications, namely Facebook, Facebook Messenger, Instagram, Twitter, Viber and Whatsapp, which are covered by a ‘zero tariff’, was not deducted from that 1 GB data limit. Secondly, the ‘My Chat’ package provided that once the 1 GB of data has been used up, subscribers could continue to use those six specific applications without restriction, whereas measures slowing down data traffic were applied to the other available applications and services.

‘MyMusic’ as a package was available in three different formats, ‘MyMusic Start’, ‘MyMusic Nonstop’ and ‘MyMusic Deezer’, respectively, which were accessible to customers with a pre-existing internet-access services package. Those formats enable subscribers, first, to listen to music online using four music streaming applications in particular – Apple Music, Deezer, Spotify and Tidal – and six radio services, and the use of those ‘zero tariff’ applications and services was not deducted from the data volume included in the format purchased. Secondly, the ‘MyMusic’ package provided that once that data volume has been used up, subscribers may continue to use those specific applications and services without restriction, whereas measures blocking or slowing down data traffic are applied to the other available applications and services.

 After initiating two procedures to ascertain whether ‘MyChat’ and ‘MyMusic’, respectively, complied with Article 3 of Regulation 2015/2120, the Nemzeti Média- és Hírközlési Hatóság (National Media and Communications Office, Hungary; ‘the Office’) adopted two decisions in which it found that those packages introduced traffic-management measures which did not comply with the obligation of equal and non-discriminatory treatment laid down in Article 3(3) of that regulation and that Telenor had to put an end to those measures.

Those two decisions were subsequently upheld by two decisions of the President of the Office, who found, in particular, that in order to examine whether the traffic-management measures were compatible with Article 3(3) of Regulation 2015/2120 it was not necessary to assess the effect of those measures on the exercise of end users’ rights set out in Article 3(1) of that regulation.

Telenor brought proceedings against both those decisions of the President of the Office before the Fővárosi Törvényszék (Budapest High Court, Hungary).

SUMMARY OF ORDER/ISSUE

The present ruling came in response to a Hungarian court’s request for a preliminary opinion in a case where the president of the National Communications and Media Office of Hungary ordered the Telenor Company to terminate some of its internet access services.

This is the first time that Regulation 2015/2120 has been interpreted by the court, which found that under Article 3, the packages offered by Telenor “combining a ‘zero tariff’ and measures blocking or slowing down the traffic linked to the use of ‘non-zero tariff’ services and applications, [are] liable to limit the exercise of end users’ rights.” In effect, these packages make it more likely to increase the use of the apps and services which are “zero tariff,” while at the same time reducing the use of other apps and services by making it more difficult to use them. The court noted that the cumulative effect of consumers selecting these packages would be to limit or undermine users’ rights protected by the regulation.

54      In the light of all the foregoing considerations, the answer to the questions referred is that Article 3 of Regulation 2015/2120 must be interpreted as meaning that packages made available by a provider of internet access services through agreements concluded with end users, and under which (i) end users may purchase a tariff entitling them to use a specific volume of data without restriction, without any deduction being made from that data volume for using certain specific applications and services covered by ‘a zero tariff’ and (ii) once that data volume has been used up, those end users may continue to use those specific applications and services without restriction, while measures blocking or slowing down traffic are applied to the other applications and services available:                       – are incompatible with Article 3(2) of Regulation 2015/2120, read in conjunction with Article 3(1) of that regulation, where those packages, agreements, and measures blocking or slowing down traffic limit the exercise of end users’ rights, and                                                                            – are incompatible with Article 3(3) of that regulation where those measures blocking or slowing down traffic are based on commercial considerations.”

“[Regarding] the interpretation of Article 3(3) of Regulation 2015/2120, the court found that, in order to make a finding of incompatibility with that provision, no assessment of the effect of measures blocking or slowing down traffic on the exercise of end users’ rights is required.” The court also found that where such measures are based on commercial considerations, they are incompatible with Article 3(3).

The court therefore has again upheld and reaffirmed the principle of Net Neutrality. It is interesting to note that the principle of net neutrality has been ardently being followed both by the Supreme Court of India as well as the Telecom Regulatory body in India since 2017.

See the judgement