We are all currently working from home and having video conferences with our colleagues, while our children are receiving distance teaching and in the evening we fall asleep on the couch watching video-streaming services. While this is the everyday life of most Europeans at the moment, it challenges the capacity and traffic load of the internet. This, in turn, affects the quality and the accessibility of the internet, heightening the risk of network congestion.
The Body of European Regulators for Electronic Communications (BEREC) and the European Commission made a joint statement on 19 March clarifying when exceptional traffic management measures are considered acceptable under EU rules. This area is regulated by the Open Internet Access Regulation (EU) 2015/2120 ("The Regulation"), which concerns net neutrality and the restriction on operators not to block, slow down or prioritise internet traffic. Notably, the Regulation outlines when exceptional traffic management measures are acceptable. This is the case if they are deemed to be reasonable, i.e. the measures must be transparent, non-discriminatory, proportionate and based on objective differences of traffic.
Article 3(3) of the Regulation states in which circumstances operators can apply exceptional traffic management measures. It is a general requirement that such measures cannot monitor specific content and cannot be maintained longer than necessary. According to the Regulation, exceptional traffic management measures can be used to prevent impending network congestion and to mitigate the effects of exceptional or temporary network congestion. Such measures can only be taken provided that equivalent categories of traffic are treated equally (Article 3(3) (c)). This is an exception to the general principle of an open internet. Such an exception should always be interpreted in a restrictive manner and can only be extended to apply as long as it is necessary and proportionate.
In their recent press release, BEREC and the Commission stated that network operators are required to comply with the following elements, if they wish to implement traffic management measures to address the Internet traffic load resulting from COVID-19:
- Operators need to objectively assess whether the levels of traffic are very high compared to a similar reference period and consider if users would be negatively affected by network congestion absent the envisaged measures;
- Exceptional congestion should be understood as referring to situations which - even when applying the highest standards of professional diligence in network management - result in unpredictable and unavoidable congestion in mobile or fixed networks (possibly caused by multiple technical failures, unexpected changes). Examples include: routing of traffic not under the operator’s control, large increases in network traffic linked to the current pandemic, or other emergency situations beyond the control of providers of Internet access services;
- When implementing exceptional traffic management measures, operators should consider proportionate solutions to the problem observed that would guarantee access to the Internet for all users. Such solutions should be effective in managing congestion that might be caused by peak traffic, be limited in time to what is strictly necessary and ensure that equivalent categories of traffic are treated equally.
Monitoring and local solutions
BEREC and the Commission have stated that at present there is sufficient network capacity in Europe, but they are collecting reports on a daily basis from national regulatory authorities in order to ensure regular monitoring of the internet traffic situation and the necessary transparency rights of end-users.
For further background, note that Bird & Bird completed a Net Neutrality study for the European Commission to use in the evaluation of the status of the Open Internet in the European Union. The Report, which was published by the Commission on 30 April 2019, covers both the status of the implementation, enforcement and effectiveness of the Regulation in all the EU Member States and Norway.
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