Net Neutrality: The Hottest Topic in France
Katia Duhamel -
Frédérique Dupuis-Toubol -
Following the United States, France is feverishly seeking to define the notion of net neutrality and to decide the issues it raises. An endless flow of reports, hearings, consultations and statements involving both the government and market participants has confused the real issues. It is the hot topic of the moment.
Last March, the CGIET, a body attached to France’s Ministry of Economy, Industry, Employment, the Budget, Public Accounts and Public Service submitted a report on “Neutrality on the Internet”; this was followed in April by a conference on network neutrality organised by the communications regulator, ARCEP, and a public consultation it organised in May, which gave rise to proposals published on 30 September.
In parallel, in March, the Ministry of Culture called for a study on the subject (as yet unpublished) while the secretary of state for the Digital Economy, Nathalie Kosciusko-Morizet, surrounded herself with a panel of experts and opened a public consultation (whose results were published last June) with the aim of producing a report for Parliament, and indeed, an amendment of the Law of the Digital Divide of November 2009. This draft amendment and the transposition into national law of the Telecoms Reform Package adopted by the European Parliament in November 2009 does not, for all that, justify such a degree of excitement.
Confusion of Interests
Confused by the multiplicity of definitions and issues, the question of net neutrality appears to be horribly complex. In reality, things are rather simpler, as neutrality is inseparable from electronic networks and communications services.
The notion of neutrality in communications is nothing new in French law and has long had a statutory basis. Article 32-1-II-5 of the Post and Electronic Communications Code, for example, refers to “respect by electronic communications operators of privacy of correspondence and of the principle of neutrality with regard to the content of transmitted messages.”
In recent months, however, the old notion of neutrality has been portrayed in differing lights, from the varied perspectives of the market participants:
According to Orange’s CEO, Stéphane Richard, speaking in an ARCEP interview on 6 April 2010:
The notion of internet neutrality should be replaced by that of the open internet, the way of leaving internet as a totally open, open space [...], with free access, no form of censure, or of selection with regard to access to information, to the capacity of expression and creation [...] to take a simple example, the privacy of correspondence.
Whereas according to Google France’s director of institutional affairs, Olivier Esper, speaking on 24 March:
[Neutrality] is non-discrimination on the networks between service contents and applications according to their sources.
The former concept is founded on freedom of expression and access to information – “neutral” terrain for an operator exonerated from liability for content; the latter is founded on non-discrimination against the source of information, services or applications circulating on networks that it does not control. Both can find comfort in this, since internet neutrality, ie, that of an electronic communications service, is at the same time non-discrimination of flux, whoever the author of the flux is, and, absence of censure for the content transported by such flux.
But the Truth Lies Elsewhere
The real underlying issues of the current debate are, certainly, linked to respect of the principle of neutrality of the internet, but they are distinct. The question of net neutrality has become, above all, an economic one. It is a matter of finding the means of financing, fairly, the network investments required to respond to the exponential development of digital usages. In other words, and in a very pragmatic manner, as Jean-Ludovic Silicani, the president of ARCEP, states, it is a matter of “ensuring effective functioning of networks, taking into account at the same time the principle of neutrality, but also the different requirements making themselves felt on the players” and of enabling “long-term development of networks and services, thanks to the innovation and development of the most effective technical and economic models”.
The Emergence of Pragmatic Solutions
The French regulator has just published 10 proposals that would ensure respect of the principle of internet neutrality and maintain adequate freedom for the market participants to develop and offer “managed services”, in addition to access to the internet, for both final users and online service providers, thus increasing the capacity for innovation for all. In short, ARCEP has formulated numerous recommendations intended to favour:
- freedom and quality in internet access;
- the non-discrimination of flux;
- the supervision of traffic management mechanisms;
- the possibility for operators to offer, in addition to internet access, managed services, for both final users and service providers, on condition that such managed services do not impair the quality of the internet access to below an adequate level, as well as ensuring respect of competition law and sectoral regulations;
- increased transparency for final users;
- the monitoring of traffic management practices;
- the monitoring of internet service quality;
- the monitoring of the data interconnection market;
- the taking into account the role of the online service providers in internet neutrality; and
- the reinforcing the neutrality of terminals.
Indeed these solutions are not far removed from the principles that the United States’ Federal Communications Commission wishes to apply to all internet access providers on all high-speed platforms with a view to:
- protecting the freedom of the user to choose contents, services, applications and suppliers (within the limits of the law);
- ensuring respect of principles of non-discrimination, according to which legal contents, applications and services may not be processed in a distinct manner (ie, ranking traffic) of transparency (obligation to divulge information concerning network management and other practices); and
- ensuring reasonable network management.
One is forced to note, however, that for either set of proposals to become fully effective, the emergence of economic models that would allow the industry to agree on a fair share of the necessary investment in the networks is lacking.