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Council of Europe wants to maintain net neutrality

'Maximum rights, minimum regulations'

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Internet service providers (ISPs) should not alter online traffic to serve faster access to content produced by companies that have helped to pay for better connectivity, draft principles into the governance of internet freedoms say.

European internet users are entitled to access to the whole internet in all but exceptional circumstances, the body behind EU human rights law has said. The Council of Europe has backed net neutrality as a fundamental principle.

The Council of Europe (CoE) promotes collaborative legal standards in the areas of human rights between all European countries. It has 47 member countries and is separate from the European Union (EU). The CoE creates and recommends legal measures. It is then up to individual governments around the world whether to follow the CoE advice.

The CoE has produced draft principles on the governance of the internet and has said that ISPs should not prioritise content from companies that have paid them. The draft plans say that this would restrict the material that users could access and that the move could breach freedom of expression laws.

"Users should have the greatest possible access to Internet-based content, applications and services of their choice, whether or not they are offered free of charge, using suitable devices of their choice," said the CoE draft Internet Governance Principles say (5-page / 75KB PDF).

"Any traffic management measure or privilege should be nondiscriminatory, justified by overriding public interest, and must meet the requirements of international law on the protection of freedom of expression and access to information," the principles said.

The net neutrality debate has been most lively in the US, where telecoms companies have said that content producers should share the cost of network building and maintenance.

Opponents of that view claim that subscribers' fees to ISPs should buy them access to all information equally, not to a service in which some is prioritised because of deals between ISPs and content producers.

US regulators voted in December to create new rules governing net neutrality that included allowing companies to pay for a faster service. Congress will decide whether to include the new rules in law.

The CoE published 10 draft principles at its conference in April in an attempt to create a "soft-law framework" for countries to adopt on how to ensure internet users' freedoms are upheld.

Human rights, democracy and the rule of law should be upheld when countries regulate the internet, the CoE draft says.

"Fundamental rights and freedoms should be upheld in the design of new technologies, services and applications. All stakeholders should be aware of developments leading to the enhancement of, as well as threats to, fundamental rights and freedoms, and fully participate in efforts aimed at recognising newly-emerging rights," the CoE's draft Internet Governance Principles said.

Internet users should be "fully empowered to exercise their fundamental rights and freedoms" even if mechanisms exist to regulate the net, the draft principles said.

Countries have a responsibility not to create an internet policy that could harm someone outwith their own territory, or impede cross-border internet traffic, the principles said. Internet regulation should comply with the law and international obligations, the draft principles said.

"Any national decision or action amounting to a restriction to fundamental rights should comply with international obligations and, in particular, be based on law, necessary in a democratic society, and fully respect the principles of proportionality and right of independent appeal surrounded by appropriate legal safeguards," the CoE draft principles said.

Trust in the internet can be preserved by involving a number of different organisations and people in helping to shape governance, and governments should not get involved in the day-to-day management of the internet, the CoE said.

"The private sector should retain its leading role in technical and operational matters while ensuring transparency and accountability to the global community for those actions which impact on public policy," the draft said.

The CoE draft report said governments, the private sector, the public and technical experts should be involved in the development and implementation of internet regulation and that developing a common approach to internet policies would help all countries participate in governing the internet.

The internet's "openness, interoperability and end-to-end nature" should guide internet regulation and if preserved should also help "creating unnecessary burdens which could affect the potential for innovation in respect of technologies and services," the draft said.

Internet policies should be guided by the aim of preserving culture and language difference and fostering local content, the CoE said.

"Our goal should be to have maximum rights with a minimum of regulations and a necessary safety on the net," Thorbjorn Jagland, Secretary General of the Council of Europe said in a video that played at the CoE conference last month.

Copyright © 2011, OUT-LAW.com

OUT-LAW.COM is part of international law firm Pinsent Masons.

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