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Impending net neutrality regulations have some potentially damaging gaps, critics have warned, ahead of a crucial vote in the European Parliament.

Though the regulations have the stated aim of keeping the internet free and open for all, in their current form critics say they are open to abuse.


The regulations could allow internet companies such as Netflix to pay for preferential treatment from ISPs, who could also speed up, slow down and throttle traffic based on judgement calls and speculation.

If the majority of MEPs vote for amendments to the draft legislation, the bill will go back to the European Council to be amended. If MEPs vote in favour of the current text, it will become EU-wide law. But according to the Electronic Frontier Foundation (EFF), which also campaigned against threats to net neutrality in the United States earlier this year, the regulations are potentially damaging. "There are several loopholes in the current text which, if not resolved, would result in limited net neutrality protections," it wrote in a statement last week.

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Loopholes in the net neutrality legislation risk leaving the system open to abuse. According to the EFF, the current text would allow ISPs to:

Discriminate certain types of traffic over others

Allow companies to pay for preferential treatment

Give ISPs permission to prioritise certain types of traffic at their discretion

Allow some traffic to be "zero rated", meaning it wouldn't count towards monthly bandwidth caps

Hand ISPs the power to carry out pre-emptive congestion management when networks aren't congested

This could make getting online in the EU more expensive and more complicated. Rather than one cable delivering all services equally, different cables would behave in different ways.


The creation of so-called fast lanes online, where companies pay a premium to reach customers faster, would create a two-tiered internet. Companies, charities and universities that can't afford to compete would consequently be harder to access and at a disadvantage.

'Fast Lanes' on the internet harm innovation, free expression, and democratic discourse in Europe Barbara van Schewick, law professor, Stanford Law School

Paid-for preferential traffic management could also stifle innovation. Established firms such as Facebook or Google, which may decide to pay to be in the fast lane, would have higher costs as a result. These costs would likely be passed onto the consumer. Smaller companies, lacking the capital to compete, would struggle to reach new customers.

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Activists, non-governmental organisations and internet law experts are calling on MEPs to push through further amendments to the draft regulation to ensure loopholes are closed and the European internet remains free and open.


Sony Pictures/Netflix

Barbara van Schewick, a law professor at Stanford Law School, argued that the current loopholes threatened both free and open access and economic growth. "'Fast Lanes' on the internet harm innovation, free expression, and democratic discourse in Europe," she wrote on blogging platform Medium. "The future of the Internet in Europe is on the line. It’s up to all of us to save it."

In an open letter headed by van Schewick, firms including BitTorrent, Kickstarter, Netflix, Reddit, Soundcloud, Tumblr and Wordpress said the current draft legislation threatened to "undermine the EU technology industry". "These problems jeopardise the future of the startup innovation and economic growth in the EU. They also create barriers for US startups and businesses seeking to enter the EU market," the letter read.

The companies called on the European Parliament to vote in favour of amendments to close the apparent loopholes.

The EU's latest movements are part of a wider effort to tidy up the block's complex and restrictive digital market. In June, the European Parliament, Council and Commission, agreed to end roaming charges across the EU by June 2017 and implement the first block-wide rules on net neutrality. The former was enthusiastically welcomed, the latter has proven controversial.


There are several loopholes in the current text which, if not resolved, would result in limited net neutrality protections Electronic Frontier Foundation

We've been here before. In June, similar net neutrality proposals were mooted in the US, with the Federal Communications Commission eventually ruling in favour of net neutrality, despite opposition from the likes of Verizon and AT&T.

The FCC said it made the decision to keep the internet "fast, fair and open". The ruling effectively means that ISPs in the US are prevented from blocking, throttling or asking companies to pay for fast-lane access. If the EU is to be similarly decisive, digital advocacy experts argue it will need to ensure worrying loopholes are closed. "Members of Parliament can still secure meaningful network neutrality for Europe — if they adopt key amendments on Tuesday," van Schewick argued.