Net neutrality on the chopping block
Government Bill grants powers to axe Internet laws
Net neutrality and the Open Internet are under threat from a proposed new law that is now before Parliament. The government wants to scrap more than 2400 EU-derived laws, including the legal framework that underpins the UK Internet. It would mean the UK would no longer have a net neutrality law. This is the principle that prevents broadband providers from interfering with content. The prohibition on general monitoring would also fall away.
This proposed new law is the Retained EU Law Bill It is sponsored by Jacob Rees-Mogg, the current Secretary of State for Business. It is part of former Prime Minister Liz Truss’ now discredited economic plans. The Bill will put in place a Sunset Clause to remove EU laws from the Statute by the end of December 2023. More than 2400 laws that were implemented in UK law by Statutory Instrument will be affected.
Two of these laws are critical to protect freedom of expression and access to online content. These are the Open Internet Access Regulations 2016 and E-commerce Regulations 2002. Both of these implemented EU laws by means of Statutory Instruments, which makes them a target of this Bill.
Once removed, there would be no protection in UK law against broadband providers filtering and blocking the Internet, or giving favoured terms to content platforms willing to pay for it.
Abolishing the Open Internet Regulations would reverse the net neutrality principle that has been enshrined in UK law since 2016. Net neutrality prevents broadband providers from making choices about what websites and online platforms that people can see. They cannot charge for carrying traffic, they may not demote content or prioritise on the basis of whether or not the provider has paid them. This is supported by the principle of mere conduit in the E-commerce Regulations, which means that broadband providers are carriers of content, but may not interfere with it. Removing the E-commerce Regulations could give broadband providers a free pass to prioritise or demote traffic to online platforms, apps and website according to their own commercial preferences.
Then there is the principle that prohibits general monitoring. This means that providers may not monitor users’ content on a blanket basis in order to filter, block or remove it – a form of prior restraint. Curiously, the ban on general monitoring was never implemented in the UK’s E-commerce Regulations, according to legal expert Graham Smith. It has nevertheless constrained UK courts from issuing orders that would impose general monitoring on a network provider.
These principles have been a cornerstone of regulation of the Internet. Getting rid of them would disadvantage UK Internet users, potentially impacting on their rights to access information and rights to publish information. Importantly, it paves the way for the measures in the Online Safety Bill that de facto will require providers to carry out general monitoring of content.
Mere conduit and the prohibition on general monitoring have been carried over into the EU’s new Digital Services Act, which is a reform of the E-commerce Directive. The UK move risks creating divergence, and likely increase costs for any network businesses that serve both UK and EU. It will also mean that UK Internet users could find they have a more restrictive experience.
Until now, there appear to have been few issues with network providers breaching the net neutrality law, according to a report by Strathclyde University.
But it is concerning that a review by Ofcom published quietly last Friday on 21 October, seeks to weaken the net neutrality principle in the UK. It steps into controversial ground regarding specialised services and zero rating. Both were hotly debated in 2015 when the EU law was legislated but also have been the subject of extensive lobbying by network providers such as BT.
The Retained EU Law Bill would enact the policy to “ditch all EU laws by 2023”, outlined by the outgoing Prime Minister Liz Truss. It was announced over the summer as part of her radical economic plans for the UK – plans that are now in tatters with an impact that has been plain for all to see. Damaging the open Internet will add to these woes.