Competitive neutrality

For retail services, ISPs may continue to employ ITMPs without prior Commission approval. The Commission will review such practices, assessing them against the framework, based upon concerns arising primarily through complaints by consumers.148

Furthermore, it should be noted that in several participating States there are plans to introduce rules and regulations regarding net neutrality. Austria,149 Estonia,150 Luxembourg and

Poland intended to implement the EU Telecoms Reform Package, which contains several provisions relating to net neutrality, by 25 May 2011. Similarly, France is planning to set down this principle; however, a deadline has not been set. In Germany, an amendment of the Telecommunications Act (TKG) is currently in the legislative process, and it is intended to take account of aspects of net neutrality in the provisions regulating the national telecommunications market.151 In Hungary, the net neutrality issue is planned to be addressed in the Act on Electronic Communication during 2011 when implementing the revised EU regulatory framework for electronic communications. In Latvia, amendments to the Electronic Communications Law have been drafted to transpose the provisions contained in the EU Telecoms Reform Package into national legislation. In Lithuania, a draft bill of legislative amendments is under preparation in order to ensure full implementation of the Telecoms Reform Package.152 The Swedish government intends to present a bill to the

148 _{For wholesale services there will be additional scrutiny. When an ISP employs more restrictive ITMPs for} its wholesale services than for its retail services, it will require Commission approval to implement those practices. Furthermore, the CRTC also decided to take steps to ensure that personal information collected for the purpose of managing Internet traffic is not used for other purposes and is not disclosed. In Telecom Decision CRTC 2010-445, Modifications to forbearance framework for mobile wireless data services, the CRTC determines that the policy framework established for Internet traffic management practices applies to the use of mobile wireless data services to provide Internet access.

149 _{Austria is in the process of implementing the new European framework for electronic communications} networks- and services. This will lead to an amendment to the Telecommunications Act. “Net neutrality” itself will not be regulated as a specific principle (more than the regular regulatory principles), but the concept will be dealt within the amended Act. So, in order to prevent the degradation of service and the hindering or slowing down of traffic over networks, the national regulatory authority will be able to set minimum quality of service requirements on an undertaking or undertakings providing public communications networks.

150 _{The Estonian Communications Act changes are currently in the preparation phase.} 151 _{Note sections 2, 20, 43a, 45n, 45o of the draft amendment of the TKG.}

152 _{The Lithuanian Bill will cover Directive 2009/140/EC of the European Parliament and of the Council of 25} November 2009 amending Directives 2002/21/EC on a common regulatory framework for electronic communications networks and services, 2002/19/EC on access to, and interconnection of, electronic

Parliament in the course of 2011 to address net neutrality and possibly to implement the EU Telecoms Reform Package. Italy stated in its response to the OSCE survey that “Italy participated in the public consultation promoted by the European Commission on this issue and it expressed its view about the general need to guarantee net neutrality, unless verified and specific traffic congestion problems suggest a different need, as sometimes can be in the case of mobile networks” but did not mention any plans to regulate net neutrality. Croatia is also planning to implement the relevant provisions of the EU regulatory framework in the process of its alignment with the EU acquis. In Portugal, there are no specific legal provisions that explicitly address net neutrality issues. However, Article 39(1) of the Electronic Communications Law, which provides the users of publicly available electronic communications networks and services equal access, implicitly guarantees “net neutrality”. Specific provisions on net neutrality may be adopted in the context of the revision of Portuguese legislation in the scope of the transposition of the European Union directives on electronic communications.

Conclusion to Part A

The Internet is increasingly becoming indispensable for people to partake in cultural, social and political discourse and life. In only 10 years from now, the number of Internet users is expected to more than double and will reach five billion worldwide. While over 60% of the citizens of the OSCE area are Internet users, only 30% of the participating States stated that they recognize access to the Internet as a basic human right or as implied to the fundamental right to freedom of expression. At the same time, in at least over 12% of the participating States, access to the Internet can legally be restricted, mostly to protect national security, public health or in times of state emergencies. Everyone should have a right to participate in the information society, and the states have a responsibility to ensure citizens’ access to the Internet is guaranteed. Furthermore, Internet access policies, defined by governments, should be in line with the requirements of Article 19 of the Universal Declaration of Human Rights as well as Article 19 of the International Covenant on Civil and Political Rights153 _{and (where}

applicable) with Article 10 of the European Convention on Human Rights.

Network neutrality is an important prerequisite for the Internet to be equally accessible and affordable to all. It is, therefore, concerning that over 80% of the OSCE participating States do not have legal provisions in place yet to guarantee net neutrality. Finland and Norway stand out as best practice examples with Finland having anchored network neutrality in its corpus of laws while Norway together with the industry and Internet consumers developed workable guidelines. While it is commendable that several EU countries are planning to introduce rules on network neutrality by implementing the European Union’s Telecoms Reform Package, participating States should consider legally strengthening users’ rights to an open Internet. Users should have the greatest possible access to Internet-based content, applications or services of their choice without the Internet traffic they use being managed, prioritized or discriminated against by the network operators.

communications networks and associated facilities, and 2002/20/EC on the authorization of electronic communications networks and services (OJ L 337/37 (18.12.2009)) including the provisions concerning net neutrality (Commission Declaration on Net Neutrality).

153 _{Note the new General Comment No.34 on Article 19 which was adopted during the 102}nd _{session of the} UN Human Rights Committee, Geneva, 11-29 July 2011, at <http://www2.ohchr.org/english/bodies/hrc/docs/CCPR-C-GC-34.doc>. The modified General Comment refers to the protection of all forms of expression and the means of their dissemination including audio- visual as well as electronic and Internet-based modes of expression.