Ed Vaizey clarifies UK government's position on net neutrality

The recent controversy about Ed Vaizey’s purported abandonment of network neutrality was probably overhyped. In Parliament today, Andrew Smith (Labor MP, East Oxford) asked the following question:

To ask the Secretary of State for Business, Innovation and Skills if he will make it his policy to ensure that internet service providers do not discriminate against competitors and new entrants in the speed at which websites and services reach their customers.

To which the Honourable Member replied:

The Government expect all internet service providers (ISPs) providing an internet access service-both fixed and mobile-to offer all legal content. Consumers should always be able to access any legal content or service they want to and content providers and applications should be able to access consumers. ISPs should not be able to discriminate unfairly against services or users. That means no blocking or discriminatory degradation of services or applications for commercial reasons.

There is not yet any evidence that discriminatory practices are emerging, or that there is a problem with regards to how ISPs or networks manage the traffic that flows over them (something they all engage in for technical reasons to deliver the best possible service to consumers). And this is enforced by the initial responses to Ofcom’s recent consultation on the issue.

A contributing factor to the success of the internet has been the lack of legislative restraints that have been placed on it. It is important that we give the market the opportunity to self regulate. Ofcom will closely monitor how the market develops and if it develops in an anti-competitive way they will intervene.

Three brief observations. First, Vaizey refers to ‘all legal content’ (emphasis added). This is an interesting qualification. Might it foreshadow a more interventionist expectation to filter or block access to ‘illegal’ (or even tortious) material? Does it suggest that ISPs can discriminate against ‘illegal’ content? What about protocols known to be used for disseminating such content, like BitTorrent? Second, the obligation is universal access, not equal access: the Minister did not require equal quality or speed of access to be given. This ignores the fact that slow access can, in many cases, be tantamount to (or worse than) no access at all. In fact, he expressly contemplates network management ‘for technical reasons’ to ensure the ‘best possible’ service. There is a lot of wiggle room here. Finally, the government has clearly foreshadowed a ‘hands off’ and reactive regulatory approach: some say this is a good thing. However, in the absence of any legislatively mandated transparency requirement (particularly about network management practices), it may be very difficult for evidence of discriminatory practices ever to emerge.