EU High Court Backs Net Neutrality Rules

The European Court of Justice in Luxembourg. (Courthouse News photo/Molly Quell)

LUXEMBOURG (CN) — The European Union’s top court on Tuesday upheld rules meant to prevent internet providers from throttling speeds or prioritizing certain online content and applications.

Judges at the European Court of Justice ruled for the first time on 2015 regulations requiring telecommunications companies to treat all internet traffic the same, upholding the EU directive against a challenge from a Hungarian telecom provider. 

“The requirements to protect internet users’ rights and to treat traffic in a non-discriminatory manner preclude an internet access provider from favouring certain applications and services,” the 15-judge panel wrote in a summary of its decision.  

The case was referred to the EU’s top court by the Budapest High Court, which was not sure how to apply Regulation 2015/2120 to two cases before it involving Hungarian wireless carrier Telenor Magyarorszag. 

The company offered customers two bundled offers: MyChat and MyMusic. The former allowed users to access Facebook, Facebook Messenger, Instagram, Twitter, Viber and Whatsapp without using their data package. The latter allowed users to stream music from Apple Music, Deezer, Spotify, Tidal and six radio stations without using their data package. 

Under both offers, once a user had exhausted their mobile data package, access to other applications would be slowed but not to those specified in the bundle. 

“Those measures appear to be based not on objectively different technical quality of service requirements for specific categories of traffic but on commercial considerations,” the Luxembourg-based court found. 

In 2017, Hungary’s National Media and Infocommunications Authority found these bundles violated the EU net neutrality directive but Telenor Magyarorszag challenged those determinations in a national court. 

Tuesday’s ruling is widely seen as a blow to telecom operators, who have been pushing for more leeway in pricing for connecting to internet-enabled devices like driverless cars and smart home devices. 

Many European carriers offer these so-called zero-rate packages prioritizing certain applications, despite the EU regulations. The Court of Justice ruling clarifies that those packages are not permitted under the law. 

“The greater the number of customers concluding subscription agreements to such packages, 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 end users’ rights,” the court wrote.

The decision wasn’t a total surprise. Earlier this year, an adviser for the court wrote in a nonbinding opinion: “Ensuring that internet traffic management is fair and non-discriminatory is a condition that must be fulfilled in order for the network to be genuinely open to end-users.”

The court follows the legal reasoning of its magistrates in four out of five cases before it. 

The United States, meanwhile, repealed similar regulations in 2018, following a vote by a deeply divided Federal Communications Commission. Chairman Ajit Pai, appointed by President Donald Trump, cast the deciding vote.  

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