Prompted by calls from operators, and in light of Brexit, could the UK chart a different course when it comes to the open internet?
Ofcom’s early and pragmatic approach has worked well: Ofcom was one of the first regulators outside the US to take on the issue of net neutrality. Even before the EU rules of 2015, Ofcom had found no need to regulate while market forces ensured that the undesirable effects of blocking or discriminating content and applications were avoided. Self-regulatory codes of practice adopted by operators contributed to this outcome by providing consumers with information on traffic management practices. This pragmatic and hands-off approach has worked well and Ofcom hasn’t needed to get involved.
The pandemic has shown the benefits of zero-rating: During the coronavirus pandemic lockdowns, many pupils were learning from home and making use of online educational resources. Operators responded to the challenges this presented, particularly for low income households, by zero-rating this content. The current net neutrality rules meant that operators had to ask the leading educational content provider to move its resources away from YouTube – otherwise they would have had to zero-rate the entirety of the platform. Ofcom is keen to learn lessons from this experience and explore whether there are more flexible ways to regulate this aspect in particular.
Zero-rating has been the most contentious issue by far: More broadly, the current regulation has been considered to have worked well so far. As recent as 2019, the EC found it “appropriate and effective” with no need for amendments. Given its popularity, regulators have shown a high degree of flexibility to zero-rating, with only three offers suspended across the whole EU between 2016 and 2019 out of 19 cases subject to investigation. However it has been a sticking point, with BEREC having had to update its guidelines in the past to try and bring more clarity. Things could change fundamentally here following a ruling last week of the European Court of Justice, which found offers from Vodafone and Deutsche Telekom to be against EU law because they discriminate within internet traffic based on commercial considerations. Should the ECJ’s decision result in restrictions to zero-rating, operators across Europe would look on at the UK in envy if Ofcom is able to maintain and strengthen the flexible approach it has had so far.
