EU court’s net neutrality ruling uproots zero-rating plans

Today, the ruling of the EU Court of Justice (CJEU) case between Telenor and Hungarian regulator NMHH could threaten the existence of zero-rating plans on the ground of net neutrality. 

 

Net neutrality is a principle enshrined in EU law that seeks to ensure that ISP’s must provide internet communications in a non-discriminatory manner; in short, this means that ISP’s cannot throttle internet traffic for certain customers or services. 

 

But how does this relate to zero-rating plans?

 

Zero-rating allows for operators to provide customers with unlimited access to certain services without impacting their data plan. While this seems innocent enough, it can be controversial, since it effectively penalises non-zero-rated services, making them harder to access. This, in principle, contravenes commitments to net neutrality.

 

In the recent court case between Telenor and NMHH, which challenged a previous 2017 ruling, the court said that zero-rating packages directly impact service availability in an unequal manner. 

 

“Such packages are liable to increase the use of the favoured applications and services and, accordingly, to reduce the use of the other applications and services available, having regard to the measures by which the provider of the internet access services makes that use technically more difficult, if not impossible,” read the ruling.

 

In addition, the court went on to suggest that a proliferation of such packages could ultimately lead to a significant limitation of “end users’ rights” by making the net less neutral.

 

“Furthermore, the greater the number of customers concluding such agreements, the more likely it is that, given its scale, the cumulative effect of those agreements will result in a significant limitation of the exercise of end users’ rights, or even undermine the very essence of those rights,” said the court.

 

Many operators in the UK currently offer zero-rating plans in some form or another – for example, providing unlimited viewing of specific video streaming services – and the future of these plans could be in jeopardy. Brexit, as always, will further complicate matters, with the UK’s planned exit from the EU before the end of the year meaning it would not be strictly held to the EU’s regulations. It appears that Ofcom will once again have its work cut out for it.

 

At the start of the coronavirus pandemic, many operators chose to zero-rate health-related websites, helping to ensure that everyone always had access to crucial information at their fingertips. Whether emergency measures such as these would be affected by this ruling is unclear, but seems unlikely, since exceptions to these net neutrality terms are already accepted in extenuating circumstances, such as emergencies and matters of security.