Internet filters in the Digital Economy Act and EU Net Neutrality Regulation

The final version of the EU Net Neutrality Regulation[1] was agreed in November 2015. One of the areas of the Regulation that drew attention in the UK was that the Regulation would disallow the parental/adult filters the UK ISPs had been encouraged by the UK Government to roll out to their customers.

The Government's first reaction was to say that they had "secured an opt-out...so that we can keep our family-friendly filters to protect children."[2] It was never been made absolutely clear exactly what this opt-out was. The UK did not raise any any objections to the EU net neutrality regulations at the European Council on 29 September 2015. [3]

Parental filters in Digital Economy Act 2017

Since then the Government has said that even though its view was that the Regulation allowed filters that can be disabled, it would legislate to allow ISPs to provide filters.

In Committee, we discussed the concern that EU net neutrality regulations will render such controls [parental control filters], which have worked well, illegal. I am clear that our interpretation of the EU regulations is that filters are allowed when they can be turned off, as they are therefore a matter of user choice. I know that there is still uncertainty about this matter, as well as concerns that filters could be challenged. I am happy to confirm to the House that, to put this issue beyond doubt, we will table an amendment in the other place to the effect that providers may offer such filters.[4]

The legislation

A Government amendment [5] in the Lords was added to the Digital Economy Act 2017 to allow for ISPs to use blocking or filtering if it was provided for in their own Terms and Conditions. It is now Section 104 of the Digital Economy Act 2017.

104 Internet filters

1) A provider of an internet access service to an end-user may prevent or restrict access on the service to information, content, applications or services, for child protection or other purposes, if the action is in accordance with the terms on which the end-user uses the service.

2) This section does not affect whether a provider of an internet access service may prevent or restrict access to anything on the service in other circumstances.

In this section—

“end-user” means an end-user of a public electronic communications service, within the meaning given by section 151(1) of the Communications Act 2003;

“internet access service” has the meaning given by Article 2(2) of Regulation (EU) 2015/2120 of the European Parliament and of the Council of 25th November 2015 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.[6]

Lords Debate

In the debate in the Lords when the amendment was introduced, Lord Ashton of Hyde – speaking for the Government – said:

As noble Lords are aware, EU regulation 2015/2120 on open internet access, or net neutrality, has created some uncertainty as to whether family-friendly filters currently offered by internet service providers and mobile network operators are compliant. The The Government are clear that such filters are indeed compliant with EU regulation. However, for the avoidance of doubt, this amendment provides reassurance for UK ISPs and mobile network operators on this matter.

The amendment clarifies that internet service providers may restrict access to information, content, applications or services where that is in accordance with the terms of service agreed by the end user.[7]

None of the three Lords who responded to the amendment was critical in any way.

Baroness Jones of Whitchurch (Labour) said that the ISPs had decided to try to keep the contradiction between filters and the EU Regulation quiet.

The Minister will know that many of the internet companies have taken the view that the less said about this issue the better. Their argument is that if attention is not drawn to the contradiction, they can carry on with the previous practice—under the wire, so to speak.[8]

Baroness Jones also said that the Minister had privately assured her that the Government's legal advice said that the amendment complies with the EU Regulation.

When I asked at a previous meeting with the Minister whether the amendments had been checked out legally, I was assured that this was the case. We have not seen that legal advice and therefore have to take it on trust that what is before us today is legally watertight and does not contravene EU rules.[9]

Baroness Jones concluded by saying that she suspected that the legislation would not stand up to scrutiny.

To some extent we are taking all of this on trust. While it would be easy to demand more evidence, I accept that it would not help the case of those committed to family-friendly filters—I suspect that the more we probe, the more the robustness of the proposals before us could unravel. We support the intent behind these amendments and it is certainly not our intention to bring them into question in any way.

Parental filters in EU Net Neutrality Regulation

The UK Government has said that it thinks parental/adult filters are allowed if they can be disabled by end-users.[10] Separately, in the Digital Economy Act 2017, it has legislated to say that parental/adult filters are allowed if ISPs put the use of filters in their Terms of Service.[11]

As long as the UK remains in the EU and/or the EEA, EU law takes precedence over UK law. It seems fairly clear that the EU Regulation does not allow ISPs to use blocking or filtering even if they provide for it in their Terms of Service that end-users sign up to as the Digital Economy Act 2017 says. The Regulation also does not appear to make any exception to the unlawfulness of blocking or filtering if the filtering can be disabled by the user as the Government has stated at various times.

The logic of the Regulation would be broken if it allowed discrimination by default if that discrimination could be turned off or if the discrimination was agreed to in Terms of Service. Otherwise any form of non-neutrality would be possible.

Summary of this area in the Regulation and BEREC Guidelines

This is a summary of what the relevant areas of the Regulation and guidelines say based on Article 3(1), 3(2), 3(3) third subparagraph, and 3(3) (a). The relevant original text from the Regulation, the recitals, and the BEREC guidelines is reproduced in the The Regulation and BEREC guidelines section below.

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The Regulation says that end-users have the right to access and distribute information and content and use and provide applications and services. Agreements between ISPs and end-users cannot limit the exercise of that right.

If specific content, applications or services is required to be blocked by a) a piece of EU or domestic legislation or b) a court order or public authority requires, then ISPs could be obliged to block access to such content, applications or services under the Regulation. The EU or domestic law requiring such block must be about the lawfulness of content, applications or services. This suggests that ISPs should not be obliged to block lawful content under the Regulation.

Any domestic legislation or measures must comply with EU law including the Charter of Fundamental Rights. Any blocks that are likely to restrict fundamental rights or freedoms must be appropriate, proportionate and necessary within a democratic society. This is clearly open to interpretation. Blocks must be subject to adequate procedural safeguards including effective judicial protection and due process.

According to BEREC guidelines, national regulators – Ofcom in the UK – should assess whether an ISP's blocking of content, applications or services was because it was obliged to for legal reasons. When assessing blocks, NRAs should consider a) whether the range and diversity of content that end-users can access is reduced in practice, b) whether content providers (websites) are materially discourage from entering or forced to leave the market and c) whether there are other material harms to competition in the market. This may be relevant to businesses and others whose (legal) website is incorrectly blocked and affects their business.

The Regulation and BEREC guidelines

These are the parts of the EU Net Neutrality Regulation and BEREC guidelines that are relevant to the debate about parental/adult filters in the UK.

Article 3(1)

Article 3(1) says:

"End-users shall have the right to access and distribute information and content, use and provide applications and services, and use terminal equipment of their choice, irrespective of the end-user’s or provider’s location or the location, origin or destination of the information, content, application or service, via their internet access service.

This paragraph is without prejudice to Union law, or national law that complies with Union law, related to the lawfulness of the content, applications or services."[12]

Recitals

Recital 5 and 6 – the explanatory note for Article 3(1) of the Regulation – says:

5) When accessing the internet, end-users should be free to choose between various types of terminal equipment as defined in Commission Directive 2008/63/EC(1). Providers of internet access services should not impose restrictions on the use of terminal equipment connecting to the network in addition to those imposed by manufacturers or distributors of terminal equipment in accordance with Union law.[13]

6) End-users should have the right to access and distribute information and content, and to use and provide applications and services without discrimination, via their internet access service. The exercise of this right should be without prejudice to Union law, or national law that complies with Union law, regarding the lawfulness of content, applications or services. This Regulation does not seek to regulate the lawfulness of the content, applications or services, nor does it seek to regulate the procedures, requirements and safeguards related thereto. Those matters therefore remain subject to Union law, or national law that complies with Union law.[14]

BEREC Guidance

The relevant BEREC guidanceon this part of the Regulation says:

23) Firstly, end-users have the right to access and distribute information and content...[15]

28) Article 3(1) second subparagraph specifies that Union law, and national law that complies with Union law, related to the lawfulness of content, applications or services still applies. The TSM Regulation does not seek to regulate the lawfulness of the content, applications or services (ref. Recital 6).[16]

29) Whereas Article 3(1) second subparagraph contains a clarification with regard to the applicability of such legislation, Article 3(3) (a) provides for an exception for ISPs to implement measures going beyond reasonable traffic management measures in order to comply with legislation or measures as specified in that exception.[17]

Article 3(2)

Article 3(2) continues:

Agreements between providers of internet access services and end-users on commercial and technical conditions and the characteristics of internet access services such as price, data volumes or speed, and any commercial practices conducted by providers of internet access services, shall not limit the exercise of the rights of end-users laid down in paragraph 1.[18]

Recital

Recital 7 – the explanatory note for Article 3(2) of the Regulation – says:

In order to exercise their rights to access and distribute information and content and to use and provide applications and services of their choice, end-users should be free to agree with providers of internet access services on tariffs for specific data volumes and speeds of the internet access service. Such agreements, as well as any commercial practices of providers of internet access services, should not limit the exercise of those rights and thus circumvent provisions of this Regulation safeguarding open internet access. National regulatory and other competent authorities should be empowered to intervene against agreements or commercial practices which, by reason of their scale, lead to situations where end-users’ choice is materially reduced in practice. To this end, the assessment of agreements and commercial practices should, inter alia, take into account the respective market positions of those providers of internet access services, and of the providers of content, applications and services, that are involved. National regulatory and other competent authorities should be required, as part of their monitoring and enforcement function, to intervene when agreements or commercial practices would result in the undermining of the essence of the end-users’ rights.[19]

BEREC Guidance

The relevant BEREC guidance on this part of the Regulation says:

30) Article 3(2) clarifies that agreements between ISPs and end-users on commercial and technical conditions and the characteristics of IAS such as price, data volumes or speed, and any commercial practices conducted by ISPs are allowed, but shall not limit the exercise of the rights of end-users laid down in Article 3(1).[20]

31) To BEREC’s understanding, Article 3(2) contains two relevant aspects:

  • the freedom to conclude agreements between ISPs and end-users relating to commercial and technical conditions as well as characteristics of IAS;
  • the provision that such agreements and commercial practices shall not limit the exercise of the end-users’ rights laid down in Article 3(1).[21]

37) To BEREC’s understanding, Article 3(2) contains two relevant aspects:

  • the freedom to conclude agreements between ISPs and end-users relating to commercial and technical conditions as well as characteristics of IAS;
  • the provision that such agreements and commercial practices shall not limit the exercise of the end-users’ rights laid down in Article 3(1).[22]

46) In light of the aforementioned considerations, BEREC considers that a comprehensive assessment of such commercial and technical conditions may be required, taking into account in particular:

  • the goals of the Regulation and whether the relevant agreements and/or commercial practices circumvent these general aims;
  • the market positions of the ISPs and CAPs [Content and Application Provider] involved - a limitation of the exercise of end-user rights is more likely to arise where an ISP or a CAP has a ‘strong’ market position (all else being equal) compared to a situation where the ISP or CAP has a ‘weak’ market position. The market positions should be analysed in line with competition law principles;
  • the effects on consumer and business customer end-user rights, which encompasses an assessment of inter alia:
    • whether there is an effect on the range and diversity of content and applications which consumer end-users may use and, if so, whether the range and diversity of applications which end-users can choose from is reduced in practice;
    • whether the end-user is incentivised to use, for example, certain applications;
    • whether the IAS [internet access services] subscription contains characteristics which materially reduce end-user choice (see in more detail in paragraph 48).
  • the effects on CAP end-user rights, which encompasses an assessment of, inter alia:
    • whether there is an effect on the range and diversity of content and applications which CAPs provide, and to what extent the range and diversity of applications may not be effectively accessed;
    • whether CAPs are materially discouraged from entering the market or forced to leave the market, or whether there are other material harms to competition in the market concerned (see in more detail in the fourth bullet of paragraph 48 with regard to offers);
    • whether the continued functioning of the internet ecosystem as an engine of innovation is impacted, for example, whether it is the ISP that picks winners and losers, and on the administrative and/or technical barriers for CAPs to enter into agreements with ISPs.
  • the scale of the practice and the presence of alternatives - a practice is more likely to limit the exercise of end-user rights in a situation where, for example, many end-users are concerned and/or there are few alternative offers and/or competing ISPs for the end-users to choose from.[23]

Article 3(3) third subparagraph

Article 3(3) third subparagraph continues:

Providers of internet access services shall not engage in traffic management measures going beyond those set out in the second subparagraph ["This paragraph is without prejudice to Union law..."], and in particular shall not block, slow down, alter, restrict, interfere with, degrade or discriminate between specific content, applications or services, or specific categories thereof, except as necessary, and only for as long as necessary, in order to:[24]

Recitals

Recitals 11 and 12 – the explanatory note for Article 3(3) third subparagraph of the Regulation – say:

11) Any traffic management practices which go beyond such reasonable traffic management measures, by blocking, slowing down, altering, restricting, interfering with, degrading or discriminating between specific content, appli­cations or services, or specific categories of content, applications or services, should be prohibited, subject to the justified and defined exceptions laid down in this Regulation. Those exceptions should be subject to strict inter­pretation and to proportionality requirements. Specific content, applications and services, as well as specific categories thereof, should be protected because of the negative impact on end-user choice and innovation of blocking, or of other restrictive measures not falling within the justified exceptions. Rules against altering content, applications or services refer to a modification of the content of the communication, but do not ban non- discriminatory data compression techniques which reduce the size of a data file without any modification of the content. Such compression enables a more efficient use of scarce resources and serves the end-users’ interests by reducing data volumes, increasing speed and enhancing the experience of using the content, applications or services concerned.[25]

12) Traffic management measures that go beyond such reasonable traffic management measures may only be applied as necessary and for as long as necessary to comply with the three justified exceptions laid down in this Regulation.[26]

BEREC Guidance

The relevant BEREC guidanceon this part of the Regulation says: (Paragraph 78 summarises paragraphs 76 and 77.)

78) By way of example, ISPs should not block, slow down, alter, restrict, interfere with, degrade or discriminate advertising when providing an IAS, unless the conditions of the exceptions a)[legal reasons], b) [network integrity and security] or c) [prevent network congestion] are met in a specific case. In contrast to network-internal blocking put in place by the ISP, terminal equipment-based restrictions put in place by the end-user are not targeted by the Regulation.[27]

Article 3(3) (a)

a) comply with Union legislative acts, or national legislation that complies with Union law, to which the provider of internet access services is subject, or with measures that comply with Union law giving effect to such Union legislative acts or national legislation, including with orders by courts or public authorities vested with relevant powers;[28]

Recital

Recital 13 – the explanatory note for Article 3(3) (a) of the Regulation – says:

First, situations may arise in which providers of internet access services are subject to Union legislative acts, or national legislation that complies with Union law (for example, related to the lawfulness of content, applications or services, or to public safety), including criminal law, requiring, for example, blocking of specific content, appli­ cations or services. In addition, situations may arise in which those providers are subject to measures that comply with Union law, implementing or applying Union legislative acts or national legislation, such as measures of general application, court orders, decisions of public authorities vested with relevant powers, or other measures ensuring compliance with such Union legislative acts or national legislation (for example, obligations to comply with court orders or orders by public authorities requiring to block unlawful content). The requirement to comply with Union law relates, inter alia, to the compliance with the requirements of the Charter of Fundamental Rights of the European Union (‘the Charter’) in relation to limitations on the exercise of fundamental rights and freedoms. As provided in Directive 2002/21/EC of the European Parliament and of the Council (1), any measures liable to restrict those fundamental rights or freedoms are only to be imposed if they are appropriate, proportionate and necessary within a democratic society, and if their implementation is subject to adequate procedural safeguards in conformity with the European Convention for the Protection of Human Rights and Fundamental Freedoms, including its provisions on effective judicial protection and due process.[29]

BEREC Guidance

The relevant BEREC guidanceon this part of the Regulation says:

81) If an ISP applies traffic management measures which cannot be regarded as reasonable, NRAs should assess whether an ISP does so because it has to do so for legal reasons, namely to comply with the legislation or measures by public authorities specified in that exception.[30]

82) As explained in Recital 13, such legislation or measures must comply with the requirements of the Charter of Fundamental Rights, and notably Article 52 which states in particular that any limitation of the rights and freedoms recognised by the Charter must be provided for by law and respect the essence of those rights and freedoms.[31]

Questions to answer

Does the Regulation allow for filters when those filters can be disabled by end-users as the Government has stated? If so, where does it say that? What is the Government's reasoning?

Does the Regulation allow for ISPs to use filters when end-users have agreed to filters in Terms of Service as the Digital Economy Act 2017 says? If so, where does it say that? What is the Government's reasoning?

What is the process for challenging this? Is it to go first to Ofcom, and then the UK courts system, and then the CJEU?

References

  1. http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:32015R2120
  2. https://www.theyworkforyou.com/debates/?id=2015-10-28a.337.2#g344.3
  3. http://data.consilium.europa.eu/doc/document/ST-12279-2015-ADD-1-REV-1/en/pdf
  4. https://www.theyworkforyou.com/debates/?id=2016-11-28a.1268.1#g1277.5
  5. https://www.publications.parliament.uk/pa/bills/lbill/2016-2017/0080/17080(k).pdf
  6. http://www.legislation.gov.uk/ukpga/2017/30/section/104/enacted
  7. https://www.theyworkforyou.com/lords/?id=2017-02-08b.1724.9#g1785.2
  8. https://www.theyworkforyou.com/lords/?id=2017-02-08b.1724.9#g1786.1
  9. https://www.theyworkforyou.com/lords/?id=2017-02-08b.1724.9#g1786.1
  10. https://www.theyworkforyou.com/debates/?id=2016-11-28a.1268.1#g1277.5
  11. http://www.legislation.gov.uk/ukpga/2017/30/section/104/enacted
  12. http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:32015R2120#d1e445-1-1
  13. https://wiki.openrightsgroup.org/wiki/BEREC_Guidelines_on_the_Implementation_by_National_Regulators_of_European_Net_Neutrality_Rules#Recital_5
  14. https://wiki.openrightsgroup.org/wiki/BEREC_Guidelines_on_the_Implementation_by_National_Regulators_of_European_Net_Neutrality_Rules#Recital_6
  15. https://wiki.openrightsgroup.org/wiki/BEREC_Guidelines_on_the_Implementation_by_National_Regulators_of_European_Net_Neutrality_Rules#Access_and_distribute_information_and_content
  16. https://wiki.openrightsgroup.org/wiki/BEREC_Guidelines_on_the_Implementation_by_National_Regulators_of_European_Net_Neutrality_Rules#Legislation_related_to_the_lawfulness_of_the_content.2C_applications_or_services
  17. https://wiki.openrightsgroup.org/wiki/BEREC_Guidelines_on_the_Implementation_by_National_Regulators_of_European_Net_Neutrality_Rules#Legislation_related_to_the_lawfulness_of_the_content.2C_applications_or_services
  18. http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:32015R2120#d1e445-1-1#d1e445-1-1
  19. https://wiki.openrightsgroup.org/wiki/BEREC_Guidelines_on_the_Implementation_by_National_Regulators_of_European_Net_Neutrality_Rules#Recital_7
  20. https://wiki.openrightsgroup.org/wiki/BEREC_Guidelines_on_the_Implementation_by_National_Regulators_of_European_Net_Neutrality_Rules#Recital_7
  21. https://wiki.openrightsgroup.org/wiki/BEREC_Guidelines_on_the_Implementation_by_National_Regulators_of_European_Net_Neutrality_Rules#Recital_7
  22. https://wiki.openrightsgroup.org/wiki/BEREC_Guidelines_on_the_Implementation_by_National_Regulators_of_European_Net_Neutrality_Rules#Shall_not_limit_the_exercise_of_end-users.E2.80.99_rights
  23. https://wiki.openrightsgroup.org/wiki/BEREC_Guidelines_on_the_Implementation_by_National_Regulators_of_European_Net_Neutrality_Rules#Shall_not_limit_the_exercise_of_end-users.E2.80.99_rights
  24. http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:32015R2120#d1e445-1-1#d1e445-1-1
  25. https://wiki.openrightsgroup.org/wiki/BEREC_Guidelines_on_the_Implementation_by_National_Regulators_of_European_Net_Neutrality_Rules#Recital_11
  26. https://wiki.openrightsgroup.org/wiki/BEREC_Guidelines_on_the_Implementation_by_National_Regulators_of_European_Net_Neutrality_Rules#Recital_12
  27. https://wiki.openrightsgroup.org/wiki/BEREC_Guidelines_on_the_Implementation_by_National_Regulators_of_European_Net_Neutrality_Rules#Recital_12
  28. http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:32015R2120#d1e445-1-1#d1e445-1-1
  29. https://wiki.openrightsgroup.org/wiki/BEREC_Guidelines_on_the_Implementation_by_National_Regulators_of_European_Net_Neutrality_Rules#Recital_13
  30. https://wiki.openrightsgroup.org/wiki/BEREC_Guidelines_on_the_Implementation_by_National_Regulators_of_European_Net_Neutrality_Rules#Recital_13
  31. https://wiki.openrightsgroup.org/wiki/BEREC_Guidelines_on_the_Implementation_by_National_Regulators_of_European_Net_Neutrality_Rules#Recital_13