A Dutch court struck a blow against strong net neutrality protections. According to the court, the mobile operator T-Mobile may continue to provide certain music services with preferential treatment to its customers in the Netherlands − a disappointing judgment showing the need for better rules.

T-Mobile has thrown the principle of net neutrality overboard with their “Data-Free Music” service. This service provides certain music streaming services with preferential treatment over other services, as long as they fulfil the conditions set by T-Mobile. This practice is called “zero rating”. To get preferential treatment, the provider of the service must not only fit within the mold of a “music streaming service” as defined by T-Mobile, it must also meet the legal and technical requirements, again set by T-Mobile. This means that music streaming services that do not make it to this list are in a disadvantageous position compared to its listed competitors.

In 2018, Dutch EDRi member Bits of Freedom appealed the decision of the national regulatory authority (ACM) not to act against T-Mobile’s “Data-free Music” service. The administrative court of first instance ruled in favour of T-Mobile: the service does not violate the net neutrality rules and the ACM does not have to act.

Unfortunately, due to procedural reasons, the court does not get to a substantive judgment on the first part of the appeal. Bits of Freedom argued that the European net neutrality rules prohibit the preferential treatment of traffic from certain services by not charging this traffic to users. The court defers to its previous judgment about this service in a case between T-Mobile and the ACM. In that judgment, it ruled that the prohibition on unequal treatment of traffic is limited to the technical treatment of traffic. The economic treatment of traffic is not covered, according to the court. The court considers this ruling to also bind the court in the case Bits of Freedom appealed.

The non-discrimination principle contained in the European net neutrality guidelines should apply to the treatment of traffic, regardless of whether that treatment involves delaying or blocking traffic or applying a different price for traffic. It is true that certain forms of differential technical treatment of traffic (so called “traffic management”) are admissible under the net neutrality rules, but this does not automatically mean that the general standard to treat traffic equally is limited only to the technical treatment of traffic.

In the second part of the appeal, Bits of Freedom explains why the zero rating service “Data-Free Music” limits the rights of end users and is therefore in violation of the net neutrality rules. An essential part of net neutrality is that an internet user is free to determine which information, services or applications they use, without interference by an internet access provider. T-Mobile is doing exactly that: it influences how certain services are treated for economic reasons. The ACM did not agree on this argument, and the court of first instance upheld ACM’s decision, unfortunately.

This judgment makes it clear that the current interpretation of the European net neutrality rules by ACM and the Dutch court is a deterioration compared to the previous net neutrality rules in the Netherlands since 2012 and before the European law came into effect. Under those rules internet access providers could not treat services unequally by charging different prices for data traffic. Dutch internet users are therefore currently less protected against practices that undermine the open and innovative nature of the internet.

In 2019, the Body of European Regulators (BEREC) will review the guidelines that protect net neutrality. The current judgment shows that it is essential that the application of the rules about zero-rating, and ultimately the rules themselves, will be improved. Only this will ensure strong net neutrality in Europe.

Bits of Freedom

https://www.bitsoffreedom.nl/

Time for better net neutrality rules (06.02.2019)

https://www.bitsoffreedom.nl/2019/02/06/time-for-better-net-neutrality-rules/

Bits of Freedom’s court case about zero rating (06.08.2018)

https://www.bitsoffreedom.nl/2018/08/06/bits-of-freedoms-court-case-about-zero-rating/

Judgment of the administrative court of first instance (only in Dutch, 24.01.2019)

https://www.bitsoffreedom.nl/wp-content/uploads/2019/01/rb-rotterdam-24-01-2019-netneutraliteit-bits-of-freedom-ecli-nl-rbot-2019-414.pdf

T-Mobile treats everyone equally unequally (21.02.2018)

https://edri.org/t-mobile-treats-everyone-equally-unequally/

(Contribution by David Korteweg, EDRi member Bits of Freedom, the Netherlands)