Following a review initially started in 2021, Ofcom is updating its guidance in relation to net neutrality. The revised guidance aims to give more clarity to internet service providers ("ISPs"), allowing them to innovate and manage their networks more efficiently. This short blog discusses the content of this guidance and what it means for ISPs operating in the UK.
What is net neutrality?
Net neutrality, is the concept that all internet traffic should be treated by ISPs in the same way.
Net neutrality is governed in the UK by the Open Internet Access (EU) Regulations 2016/607.
Under net neutrality requirements, ISPs must treat all internet traffic on their network equally; they cannot block or slow access to certain internet sites, nor can they manage internet traffic to gain commercial advantage.
However, ISPs are allowed to manage internet traffic in order to comply with the law or ensure the smooth running of the network. Ofcom is responsible for governing and ensuring compliance with the legislation and providing guidance on how ISPs adhere to these obligations. Previously ISPs have found it difficult to comply with these rules due to the lack of clear guidance from Ofcom on what they can and can’t do.
Updated Guidance
Ofcom began their review the net neutrality rules and obligations in 2021. Overall, OFCOM found net neutrality supported customer choice whilst allowing content providers to deliver their content and services efficiently. However, Ofcom also felt more clarity could be provided on certain aspects of the guidance given to ISPs, which could help improve ISPs' net neutrality experiences.
The revised guidance can be found here. In summary, the updated rules include:
Retail Packages. ISPs can offer retail packages of different levels of quality if all internet traffic is treated equally within that offer. This will allow ISPs to tailor packages to customer needs, such as offering premium lower latency packages to gamers whilst allowing users who use the internet for mainstream purposes (e.g. browsing) to have cheaper packages. However, ISPs must make clear to consumers what they can expect from the different service packages they purchase.
Specialised Services. ISPs may provide specialised services to deliver specific content and applications that need to be optimised (e.g. real-time communications or autonomous vehicles). This will allow ISPs to utilise full fibre and 5G networks to develop their services. The guidance sets out that specialised services can be offered when:
- Optimisation is required to provide the services. The nature of shared infrastructure on mobile access networks should be considered by ISPs, specifically as this can lead to more significant variability of service quality,
- sufficient capacity is available to continue to provide internet access services in addition to specialised services, and
- specialised services do not offer a replacement for internet service access.
Traffic Management. ISPs are allowed to use traffic management measures to ensure the best consumer experience on their network, including where:
- reasonable traffic management is used by ISPs to optimise their networks on an ongoing basis;
- additional traffic management measures are implemented to address exceptional or temporary network congestion; and
- permanently configured traffic management measures are implemented, provided that the effect is in line with reasonable traffic management or the measures discussed above.
While Ofcom does not have the power to exempt categories of services from the scope of the Regulations, Ofcom says that it is unlikely to be concerned where traffic management is used on the following categories of traffic:
- internet access services provided on transport or in public spaces, (where used to give a reasonable level of service to as many users as possible);
- the prioritisation and zero-rating of all communications with the emergency services;
- blocking access to fraudulent or scam content;
- the use of parental controls and other content filters blocking traffic; and
- other reasonable cases, such as allowing access to information for vulnerable consumers and blocking access to intimate images.
Zero-rating Offers. Zero rating is where data used by apps or websites does not count towards the overall data allowance of consumers. Ofcom generally allows these offers if they are i) content from public bodies, NGOs or charities with social benefits and no competitors providing the same content or ii) genuinely open offers. However, all other offers will be assessed against the criteria in the guidance before user access is allowed.
Data gathering and monitoring
To enable OFCOM to monitor compliance with the net neutrality guidance and the application of traffic management, ISPs will need to collect information on network performance and traffic management, including data on the use of any additional measures beyond reasonable traffic management. ISPs will also need to provide OFCOM with information on zero-rating, retail offers with different levels of quality, and any specialised services that they offer.
Next steps
Although the guidance has granted ISPs some more flexibility and clarity concerning the application of the net neutrality rules, Ofcom has maintained that ISPs must be transparent with traffic management, zero-rating and retail offers, and specialised services to allow consumers to make informed decisions.
Overall, ISPs have been optimistic about the updated guidance, but they still further steps can be taken to make net neutrality more flexible and fairer to them. Specifically, some ISPs want to charge content providers for carrying traffic, arguing that it would lead to more efficient networks. Although Ofcom recognised there would be benefits from charging content providers, OFCOM was not convinced that it was a necessary change. Notwithstanding this, it would be the Government's decision as to whether a charging scheme is introduced.
If you have questions on the application of net neutrality or the requirements imposed on ISPs, please get in touch with Martin Sloan or Jennifer Murphy.
