Defending Net Neutrality

Highlights/Executive summary

This policy brief offers recommendations for policymakers and advocacy groups that want to protect Internet freedom and individuals’ ability to use the Internet to exercise their rights. The following recommendations for public institutions are aimed to shield these values from profit maximising attempts of private enterprises and from undue interference by governments:

• Respect human rights online by protecting equal treatment of Internet traffic.
• Permit unequal treatment of data chiefly to protect people and networks.
• Ensure priority for human rights data in all situations.
• Consider permitting extra charges for Big Tech ‘gatekeepers’.

Who is this for?

This policy brief is aimed at policymakers as well as at advocacy groups looking to protect net neutrality and human rights on the Internet.

Introduction

Net neutrality – the principle that Internet traffic is to be treated in a non-discriminatory fashion – is essential for the free use of human rights online and for innovation in digital markets. Slowed down Internet content has been shown to be less attractive for Internet users. If preferential data treatment can be paid for, or payment is demanded for equal treatment of data, those who can afford it can present their content more prominently online. It would become less attractive to seek content produced by those without wealth and/or power. Discriminatory treatment of Internet traffic therefore impacts on people’s rights to express themselves and to choose information online freely. Unequal data treatment can be permissible if there are good reasons for it (e.g. network security and functionality, fairness in the distribution of profits engendered by the Internet). However, in any situation people’s ability to equally exercise their freedoms online must be protected. Profit maximisation interests of private companies and government attempts to manipulate Internet traffic are incompatible with respect for human rights.

Recommendations

1. Respect human rights online by protecting equal treatment of Internet traffic:

• If equal or preferential treatment of Internet traffic has to be paid for those who determine the price – normally: Internet Service providers (ISPs) – also determine what people see or are directed toward seeing on the Internet.
• Innovation in Internet content and application services can be expected to suffer when a financial barrier is raised for those wanting to compete against powerful established companies (van Schewick 2010).

How: public institutions should protect equal access to information on the Internet as well as economic competition by legally enforcing the principle of net neutrality.

2. Permit unequal treatment of data chiefly to protect people and networks.

• Unequal treatment of data should be permissible where this is necessary for achieving legitimate and important goals.
• Viruses and other malware pose standard threats to the security of networks and Internet users. During peak times, data traffic congestion might threaten the smooth operation of networks.

How: public authorities should allow ISPs to treat Internet traffic differentially where this is necessary and proportionate for protecting the functionality and safe use of the Internet (BEREC 2012).

3. Ensure priority for human rights data in all situations.

• When Internet traffic discrimination is necessary and proportionate e.g. for the purpose of managing data congestion in broadband networks, Internet service providers should have to give priority to Internet services and applications most relevant for the exercise of Internet users’ human rights.

How: public authorities should determine a category of human rights data minimally comprising government websites that provide public information or services, publicly accredited education and healthcare providers, cultural institutions such as museums, and websites of public broadcasters.

‘Must carry’ rules for human rights data should apply to ensure that it is not crowded out by less important Internet traffic (e.g. related to shopping or entertainment) during times of restricted capacity (Reglitz 2024).

4. Consider permitting extra charges for those Big Tech ‘gatekeepers’.

• ISPs have claimed they should be allowed to disregard net neutrality to raise more revenue (a) to benefit more fairly from profits the Internet engenders (that currently are often appropriated by Big Tech application providers) and (b) for improving consumer welfare by expanding and maintaining networks.
• Where it can be shown that market incentives are insufficient for expanding and maintaining broadband networks, public authorities could consider permitting ISPs to charge those benefitting the most from Internet commerce to have their data/content treated equally, but not preferentially (Reglitz 2024).

How: Public authorities should specify a category of biggest beneficiaries of Internet commerce for whom these extra charges can be applied, such as the gatekeepers defined in the European Union’s Digital Markets Act (EU 2023). Gatekeepers are the biggest Internet-based corporations that control the main platforms through which content providers reach their end-users. Gatekeepers therefore occupy dominant and entrenched positions in markets in the digital sector.

Key Insights/Takeaways

Net neutrality is a normative concept aimed at protecting Internet user rights.

• Autocratic regimes have no use for net neutrality as they use the Internet to manipulate and oppress their populations.
• Non-discriminatory treatment of Internet traffic is essential for Internet users’ ability to send and freely choose content on the Internet. Slowed down, de-prioritised content is less attractive and likely to be avoided.
• Economic innovation at the content/application layer of the Internet requires net neutrality to avoid entry barriers for new competitors.

When discriminatory treatment of Internet traffic is justified, data pertaining to the use of human rights must be protected.

• Net neutrality rules can be temporarily disregarded for the sake of protecting network security and efficiency.
• Where Internet traffic congestion occurs, ‘must carry’ rules for human rights data should ensure the most important Internet traffic is prioritised.
• Those disproportionally profit from Internet commerce could be made to financially contribute more than they currently do to the maintenance and expansion of the infrastructure they benefit from.

Further readings and references

• Merten Reglitz. 2024. Free Internet Access as a Human Right (Cambridge University Press).
• Barbara van Schewick. 2010. Internet Architecture and Innovation (Cambridge: MIT Press).
• 2012. Summary on BEREC Positions on Net Neutrality.
• 2023. Questions and Answers: Digital Markets Act: Ensuring Fair and Open Digital Markets.

Contact:

Dr Merten Reglitz/ Associate Professor/ Department of Philosophy/ University of Birmingham /

m.reglitz@bham.ac.uk.