EU Rules on Internet Neutrality breached through traffic management measures: Grand Chamber ruling from the Court of Justice
In its first ruling on internet neutrality, the Grand Chamber of the Court of Justice has found a violation of EU rules that protect open internet access and prohibit discrimination by treating internet traffic differently – Telenor Magyarország (Joined cases C-39/19 and C-807/18), and it has provided its first interpretations of provisions of the Open Access Internet Regulation 2015/2020.
In this case, it holds that an internet access provider (such as telecoms operator Telenor) by favouring some applications and services – offering them under a reduced tariff package – is carrying out a discriminatory traffic management measure, as it makes the use of other applications and services subject to measures blocking or slowing down traffic.
This breaches Article 3 of the Open Internet Access Regulation on the safeguarding of open internet access and non-discrimination of treatment of internet traffic.
It clarified the interpretation of the Regulation’s provisions as follows:
- the interpretation of Article 3(2) and (1) read in conjunction provides that those safeguarding rights are to be exercised ‘via their internet access service’;
- the rights laid out in those provisions cannot be limited;
- the internet access provider’s services must be assessed and reviewed taking into account (i) the agreements concluded between the provider and end user, as well as (ii) the commercial practices in which it engages;
- an agreement under which consumers have a ‘zero tariff’ package combined with measures blocking or slowing down traffic linked to the use of ‘non-zero tariff’ services and applications is liable to limit the exercise of end user’s rights on a significant part of the market – making the use of other applications and services impossible or technically difficult;
- the interpretation of Article 3(3) is that there is no need to assess the impact of such traffic management measures on blocking or slowing down traffic in order to make a finding that it has been breached.
- where measures blocking or slowing down traffic are based not on objectively different technical quality of service requirements for specific categories of traffic, but on commercial considerations, those measures must in themselves be regarded as incompatible with Article3(3).