Scope
Which end-users are protected by the Open Internet Regulation, and how?
Regulation (EU) 2015/2120 of the European Parliament and of the Council of 25 November 2015 laying down measures concerning open internet access – the ‘Open Internet Regulation’ – establishes rights in relation to the open internet for ‘end-users’. Using the legal definitions provided in the European Union (EU) regulatory framework for electronic communications, the Body of European Regulators for Electronic Communications (BEREC) understands that the rights are available to both individual consumers and businesses using Internet Access Services (IAS). The businesses enjoying this protection include Content and Application Providers (CAPs) insofar as they use an IAS to provide content or applications to other end-users. A CAP is a company which makes content (e.g. webpages, blogs or videos) and/or applications (e.g. search engines, Voice over Internet Protocol (VoIP) and/or services available on the internet.
As well as providing rights to end-users, the Open Internet Regulation establishes common rules ‘to safeguard equal and non-discriminatory treatment of traffic’. It is widely understood that the internet has greatly contributed to growth and innovation in our economies – the low barriers to entry on the open platform of the internet have provided particularly fertile ground for new content and applications to develop, and for information to flow freely. These Net Neutrality rules seek to ensure that the internet ecosystem can continue to flourish as an engine of innovation and freedom of expression.
What kinds of service are covered under the Open Internet Regulation?
The Open Internet Regulation covers the provision of IAS and Specialised Services (SpS) (see below). Regarding IAS, these are publicly-available electronic communications services which provide access to the internet, and thereby connectivity to virtually all end points of the internet, irrespective of the network technology (e.g. fibre, cable or mobile) used, and irrespective of the terminal equipment (e.g. mobile phone, tablet or laptop) used.
Consequently, BEREC considers the following as not being within the scope of the Open Internet Regulation and not subject to the rules:
- Subject to an assessment by the National Regulatory Authorities (NRAs) of the individual cases, access to the internet provided by cafés and restaurants, internal corporate networks and private Machine-to-Machine (M2M) networks (for example in factories and ports), because these are typically limited to a predetermined group of end-users and might therefore not be ‘publicly available’.
- Services where access to the internet is limited by the nature of the terminal equipment, such as M2M devices including smart meters and e-book readers.
On the other hand, BEREC considers ‘sub-internet services’ to be within the scope of the Open Internet Regulation and an infringement of the rules. BEREC defines a sub-internet service as one which would restrict access to services or applications (e.g. banning the use of VoIP or video streaming) or which would enable access to only a predefined part of the internet (e.g. access only to particular websites).
Why do Internet Service Providers need to provide access to ‘virtually all endpoints of the internet’ rather than the entire internet?
BEREC understands that the rules refer to access to ‘virtually’ all parts of the internet because the Internet Service Provider (ISP) providing the access controls only a small part of the internet, and it is possible that not all parts of the internet can be reached all of the time due to reasons outside of the ISP’s control, e.g. due to regulation in other countries.
Does the Open Internet Regulation cover interconnection services?
Interconnection services are distinct from IAS. Interconnections enable traffic to be exchanged between networks across the internet, and interconnection services can be provided by many different operators, including wholesale (‘backbone’) and retail telecom operators, Content Delivery Network (CDN) companies, and large content providers (e.g. YouTube and Netflix), which operate their own CDNs.
NRAs may take into account the interconnection policies and practices of ISPs insofar as they have the effect of limiting the exercise end-user rights under Article 3(1). In accordance with recital 7 of the Open Internet Regulation, ‘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.’