Sky, BT, TalkTalk and O2, which block access to adult content, could be affected – even if customers opt in

Internet service providers that restrict online access to pornography or block ads could be breaking EU guidelines on net neutrality even if customers opt in.

ISPs Sky, BT and TalkTalk already block access to adult sites following pressure from the government, as do mobile operators such as O2. Mobile operator Three has also recently run a trial of ad blocking that asked users to opt in.

EU regulations only allow providers to block content for three reasons: to comply with a member state’s laws, to manage levels of traffic across a network, or for security.

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Blocking adult content falls into a grey area, with no clear legal framework in UK legislation, and providers have relied on providing the ability to opt in to protect themselves from falling foul of the rules.

However, guidance on the interpretation of guidelines issued by EU body Berec says that even if a person indicates they want certain content to be blocked, it should be done on their device, rather than at a network level.

The guidance, contained in a report issued alongside the updated guidelines says: “With regard to some of the suggestions made by stakeholders about traffic management features that could be requested or controlled by end-users, Berec notes that the regulation does not consider that end-user consent enables ISPs to engage in such practices at the network level.

“End-users may independently choose to apply equivalent features, for example via their terminal equipment or more generally on the applications running at the terminal equipment, but Berec considers that management of such features at the network level would not be consistent with the regulation.”

Interpretation of the EU guidelines falls to Ofcom, but the UK regulator must take them into account when deciding if there has been a breach.

An Ofcom spokesman said: “Ofcom will monitor compliance with the new rules, and look into any complaints received. We will consider any potential breaches as they arise in accordance with our interpretation of the regulation, and drawing upon the Berec guidelines to inform our approach.”

Frode Sorensen, co-chair of the Berec expert working group on net neutrality refused to comment on specific cases or countries, but said the updated guidance made it clear that it had found no legal basis for using customer choice to justify blocking any content without national legislation or for reasons of traffic management or security.

David Cameron said in October last year that he had secured an opt-out from the rules enabling British internet providers to introduce porn filters.

However, Sorensen said he was not aware of any opt-out, and the net neutrality rules introduced in November, after Cameron made his claim, said they applied to the whole European Economic Area which includes the UK.

The net neutrality rules are designed to ensure that internet providers to not favour specific sources of content such as commercial partners, or censor information that is not forbidden by laws passed by national governments.

A DCMS spokesperson said the rules still allowed for internet filters, but could not immediately point to the where in the legislation those were allowed at a network level.

A spokesperson said: “Family-friendly filters are permitted under the EU net neutrality regulation. The regulations gives end-users the right to access information and content of their choice, and enabling/disabling filters exercises this choice.”

A spokesperson for BT said: “BT offers filtering at both network and device level dependent on the customers preferences.”

“The Berec guidelines are not binding and it’s for Ofcom to consider in its application and enforcement of the EU regulations.”

“The UK has one of the safest online environments in the world and we believe customers should be able to continue to choose to use parental filters to protect children while online regardless of the technology.”

•This article was amended on 1 September 2016 to correct a reference to the guidance featuring in the guidelines. It was in fact in a report accompanying their publication