The other day, I came across a blog post by one of Europe’s biggest telecommunication operators, Spain’s Telefonica, arguing that the “fair share” debate is not about network neutrality and that its reference is some sort of a ploy by big tech to “distort and distract from the crucial issue: [the fact that] Europe needs investments in digital infrastructure for the benefit of all Europeans in the future”.
Let me start by pointing to the hypocrisy of this statement. Let’s not forget that it was the telcos that created an issue out of nothing by piggybacking on the wave of legislation targeting big tech; the hope is that other legitimate concerns policy makers have about big tech will clout their judgement so much so that they believe the unreasonable complaints of telcos. And, these claims are unreasonable; we know this by now. The majority has spoken: there is no market failure, there is no need for regulation, there is not a problem. Yet, here we are talking about a non-problem for more than a year now. So, let’s not forget who opened the network neutrality can of warms. Telcos did.
But let’s go back to the reason for this post: the idea that the current debate is not about network neutrality.
Let me start by saying that, unequivocally, the “fair share” debate is about network neutrality. There is no question about it. It always has been and it will always be. It was a network neutrality issue back in 2012, when European telcos came up with this plan and it continues to be today. As I asked back in 2022, “How is it possible to talk about changing the way interconnection works in the Internet and not talk about network neutrality? How is it possible to consider allowing certain commercial transactions to replace years of peering arrangements in the Internet and not talk about network neutrality? Pretty simple, you cannot”.
And, if you don’t believe me then you must read what Barbara van Schewick, one of the world’s leading experts on net neutrality, a professor at Stanford Law School, and the director of Stanford Law School’s Center for Internet and Society, has written:
“Net neutrality seeks to ensure that we, not the companies we pay to get online, get to decide what we do online. Users determine what apps and services are successful, not ISPs. Art. 3(3), subparagraph 1 of the Open Internet Regulation ensures ISPs cannot interfere with our choices by prohibiting ISPs from discriminating among applications, content, and services. In 2020 and 2021, the European Court of Justice held that this rule prohibits ISPs from treating applications differently either technically or economically. That means an ISP may not slow down Netflix or put its own video service in a fast lane; that would be technical discrimination. An ISPs may not charge a different price for the data used by WhatsApp than for the data used by the ISP’s own messaging app, either; that would be economic discrimination. The network fee proposal seeks to charge selected content providers but not others. This treats content providers that have to pay differently from those that are exempted. This kind of economic discrimination directly violates Art. 3(3), subparagraph 1.”
Of course, the concerns over network neutrality are not promoted or voiced by Big Tech only. Civil society, consumer organizations, members of the European Parliament and governments have all expressed concerns about the implications a “fair share” proposal can have on the established principles of network neutrality and the ability of users to access the content they pay their ISPs for. Telefonica's blog post conveniently avoids to mention them. They pin it to big tech because, playing the “big tech does everything wrong” card, might actually distract from talking about the real impact of this policy on users, the European digital market and the Internet.
There is really no way to getting around the fact that forcing some apps and services to pay ISPs is the definition of network neutrality violation. There is also really not getting around the fact that, if this initiative goes forward, Europe will be solely responsible for undermining one of the most fundamental and hard-fought principles in the Internet. Just because you want something not to be a problem, does not mean it isn’t. And, this is the case with network neutrality; just because telcos and the Commission are saying it is not an issue, it does not make it a non-issue; especially, when all evidence points to the contrary.
For better or worse, we are now stuck with this debate. It would be a grave injustice to allow telcos to narrow it only to the bit that makes them comfortable. Network neutrality should be on the table!