The French government should be now working on a possible legislative proposal on Net Neutrality. It received an opinion from the Conseil National du Numerique (CNN) which contains strange recommendations which waters down, if not could kill, Net Neutrality.
Wrong legal framework
The CNN recognises that freedom of speech is not enough protected with today’s threat of blocking, filtering…and therefore NN deserves the statute of fundamental right standing on the top of the law hierarchy, having a kind of constitutional value.
It’s great, we agree with that! That is why the CNN proposes the French government to put NN in…An old, basic law of 1986 that was passed to liberalise the TV sector and enable private broadcasters to emit.
It is very strange that the Net neutrality of the internet is part of this law that was set up for the TV sector, where communication goes in one way, via very few canals and is centralised, all of these not really applying to the internet concept! Doh n°1
The result of this strange integration would be that right after the beginning of article 1of the law stating that electronic communication to the public should be free, net neutrality would have to be applied the list of limitation to the free communication principle also embodied in the same article, and which includes the respect of human dignity, the right of property and childhood protection. Those limitations are of course excessively used by private actors to justify discrimination and fundamental rights violation on the internet.
This could dangerously facilitate the work of private companies to invoke its property right to avoid Net Neutrality and apply access restriction measures. Crap n°1
“Technical constraints” are also in the limitation list without having a precise definition. Here again, it would be very easy for a telecom operator to invoke technical constraint that he would have defined itself, to justify access hindering. Crap n°2
Weak or no definition
In the CNN opinion, Net Neutrality is not really defined, rather included in the sentence of Article 1 as such (free translation):
“The neutrality of the communication networks, infrastructures and electronic services of access and communication to the public, guarantees the access to information and to the means of expression, in non-discriminatory, equal and transparent conditions”.
So Net Neutrality is not defined as such, and non-discriminatory conditions rather remind the competition “wording”, which could imply that there would be a kind of scale of intensity to set up and to assess (by the judges!) in order to determine whether a behaviour is discriminatory or not. This could be in fact the open door for the categorisation of the internet including based on commercial ground. Crap n°3
No sanction
The CNN opinion does not refer to any need of sanctions, nor does it foresee the possibility for the French national telecommunication authority (ARCEP) to set-up preventive administrative sanctions for Net neutrality infringers.
Here again it is very strange that the CNN opinion regrets that the European Parliament did not refer to sanctions in its 2011 resolution on Net Neutrality , and in the same time does not propose the French government to put sanctions… Doh n°2
It would have been clearer to propose a new, positive law for NN and indicate that under this principle information traffic is not hindered otherwise clear sanctions would apply. Basta.
For those who read French you can refer to the well-argumented position of La Quadrature du Net
The opinion of the CNN is definitely a step in the right direction and should be improved / built on rather then gunned down. The CNN isn't hellbent on using the 1986 law and has already indicated its willingness to look at alternative instruments. Details + sanctions are important but 1st we need to set NN as a strong legal principle as suggested in the opinion. The choice to look at NN in the widder context of the neutrality of technical intermediaries is an interesting and promising one although it brings up a lot of questions.
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