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IRIS 2010-10:1/3

Committee of Ministers

Declaration on Network Neutrality

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Emre Yildirim

Institute for Information Law (IViR), University of Amsterdam

On 29 September 2010 the Committee of Ministers of the Council of Europe adopted a Declaration on network neutrality. The Declaration focuses on the protection and promotion of human rights on the Internet and the possible disturbance thereof by the absence of network neutrality.

The Declaration notes the significant reliance of people on the internet as a tool for their everyday activities. It acts as a tool for communication, information, knowledge and commercial transactions and thus helps to ensure, inter alia, freedom of expression and access to information, pluralism and diversity. These rights might however be adversely affected by non-transparent traffic management, content and services’ discrimination or impeding connectivity of devices.

The Declaration stresses that access to infrastructure, irrespective of which device the end-user utilises, is a prerequisite for the greatest possible access to Internet-based content, applications and services. Due to an exponential increase in Internet traffic and the use of bandwidth, operators of electronic communication networks may have to manage Internet traffic. This could possibly affect the quality of service, the development of new services, network stability and resilience or the combating of cybercrime.

In so far as traffic management is necessary in the context set out above, the Declaration notes that it should not be seen as a departure from the principle of network neutrality. Any exceptions to this principle should be considered with great circumspection and need to be justified by overriding public interests. The Committee of Ministers calls for attention to be paid to the provisions of Article 10 of the European Convention on Human Rights and the related case law of the European Court of Human Rights. It thereby also refers to the European Union regulatory framework on electronic communications.

According to the Declaration, the users and providers of services, applications or content should be able to gauge the impact of network management measures on their fundamental rights and freedoms and be notified of their existence. Those measures should be proportionate, appropriate and avoid unjustified discrimination; they should be subject to periodic review and not be maintained longer than strictly necessary. Procedural safeguards, in the form of adequate avenues to challenge network management decisions, should be provided for.

The Committee concludes the Declaration by noting its commitment to the principle of network neutrality and emphasising the need for the compliance of any measure that breaches the aforementioned principle with the requirements set above.

Declaration of the Committee of Ministers on network neutrality, adopted on 29 September 2010 EN