How free is the data flow?

Internet providers are obliged to treat all data on the network equally. In three proceedings, the European Court of Justice must now clarify whether offers from Vodafone and Telekom will redeem this.

Net neutrality – what does that mean?

It is about the equal treatment of data when it is transmitted on the Internet. Basically, users should be able to access all content equally well. This means: All providers, e.g. of apps, must be treated equally during the transfer. Telecommunications companies are therefore not allowed to make the transmission of data dependent on the content of the data, from whom it originates, and who receives it. This is to prevent companies from creating a monopoly position by paying Internet providers to prioritize their content. Put simply: the big market leaders shouldn’t be allowed to push themselves into the “fast lane” of the information superhighway. At the same time, users should be able to use the Internet individually and independently.So different interests collide: on the one hand the political desire for equal treatment of all data, on the other hand, the desire of the providers to make their own content available on the market as quickly and attractively as possible.

What is the legal background?

The EU legislator issued a regulation in 2015. This is intended to create “common rules to ensure the equal and non-discriminatory treatment of data traffic in the provision of Internet access services and the associated rights of end-users”.In autumn 2020, the European Court of Justice (ECJ) issued an important ruling on this: A Hungarian company had offered a mobile phone tariff. The use of Facebook, WhatsApp, Instagram, Twitter, and Viber apps did not affect the data volume. If the data volume was exhausted at some point, the surfing speed was throttled. However, customers could still use Facebook, WhatsApp, Instagram, Twitter, and Viber without restriction. From the point of view of the ECJ, this is a clear violation of net neutrality. The providers are therefore not allowed to give preference to certain apps by blocking or slowing down the use of the other services after the data volume has been used up. Such offers could reduce the use of apps that are not given preferential treatment. The more people sign such cell phone contracts, the more it would undermine net neutrality.

What are the proceedings now?

The ECJ now has to decide on three proceedings that were submitted by German courts: In the first case, the Cologne Administrative Court would like to know whether the company Vodafone is violating the roaming regulation with its “Vodafone Pass” tariff. Vodafone’s offer promises free use of the services of its partner companies. In Germany, there is no offsetting of the user’s included data volume, but it does in other countries. It must be clarified whether this is compatible with the prohibition contained in the Roaming Ordinance on not charging additional fees for roaming services in other European countries. So there is unequal treatment of data at home and abroad.In the second case, the Higher Regional Court (OLG) Düsseldorf wants to clarify, among other things, whether Vodafone network users may contractually prohibit so-called tethering. Tethering means the free choice of the end device, including the use of network access via a second device that is not directly connected to the public telecommunications network. The court wants to know here whether this constitutes prohibited unequal treatment.

In the latter case, Telekom and the Federal Network Agency are arguing whether it is legal to reduce the data transmission rate for video and music streaming. Telekom has provided this limitation for its “Stream On” option, which can be booked as an additional option. Customers can then access the content of certain providers free of charge, but only with reduced bandwidth. The Federal Network Agency had prohibited this. In the urgent procedure, Telekom failed before the Cologne Administrative Court and the Münster Higher Administrative Court. The Cologne Administrative Court wants to clarify whether users are disadvantaged here or whether it is a question of permissible “traffic management” of the data.

What is the meaning of the judgments?

Should the ECJ consider the offers to be a violation of EU law, such contracts could no longer be offered. However, some of the tariffs in question are no longer on the market. The decision would then have more of a signal effect for the future: such offers could then no longer be made. Klaus Landefeld from the Association of the Internet Industry, however, considers these contracts to be an obsolete model anyway. “In the medium term, the so-called full flat tariffs will dominate the market. Offers such as ‘Stream on’ are being phased out.” The economic impact of the judgments on the providers is therefore manageable. The legal questions behind it, however, are exciting.



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