At CRITique we are big fans of OUT-LAW, but we have to question their finding that neither regulators nor the law protect net neutrality in Britain. We think there may be tools available to defend net neutrality.
Exhibit 1 for the defence is the Regulation of Investigatory Powers Act 2000. This makes interception of communications in a public telecommunications system, which would include the internet (to the extent that internet traffic is carried by UK ISPs), unlawful except for certain defined lawful circumstances. We would argue that throttling or blocking any particular internet traffic, such as BBC iPlayer or Google YouTube traffic, necessarily involves unlawful interception.
Exhibit 2 is made up of the relevant conditions in the Special Conditions addressed to the UK dominant wholesale local access providers, BT and Kingston. In particular, it is arguable that a case could be made that any interference with some content providers’ internet traffic would amount to a breach of (in the case of BT):
Condition FA2 – Requirement not to unduly discriminate
FA2.1 The Dominant Provider shall not unduly discriminate against particular persons or against a particular description of persons, in relation to matters connected with Network Access.
Exhibit 3 may be the Unfair Terms in Consumer Contracts Regulations, as mentioned in OUT-LAW. To what extent would it be fair to include a term in an ISP’s service agreement to exclude access to content providers, at the ISP’s discretion?
Exhibit 4 may be the Consumer Protection from Unfair Trading Regulations. There is already an argument that the practice of advertising internet services as being “up to x Mb” may not be properly understood by the “average consumer” (as defined in the Regulations), let alone the question of contention ratios, so that there is unfair trading in the ISP market. How will restricted access to popular content providers’ websites be dealt with in ISP marketing?
We may work up these ideas to see if they are sound, in which case we’ll go for a published article on the subject. Watch this space.