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At the joint European Parliament and European Commission net neutrality summit in Brussels on 11 November there was a clear political message - that interference with Internet traffic is permissible as long as companies tell their consumers that it is happening.

The Commission will "wait and see" if such interferences cause problems for the market and will consider taking action if this is the case. In a whole day of discussions, the fundamental rights aspects of the interference by private companies with citizens' communications were only questioned by Jeremie Zimmermann from La Quadrature du Net and Jan Albrecht MEP (Greens/EFA, Germany).

Anyone who has been active in telecoms regulation in Brussels for the past decade would have been forgiven for suffering from a severe bout of "déjà vu". The large operators were out in force explaining that the market is very competitive and they could not afford any regulatory interventions. No regulatory intervention is needed, they explained, because the market will take care of all problems. Catherine Trautmann MEP (S+D, France) demanded a Commission Recommendation which, while not binding, would at least create a methodological framework adaptable for binding legislation after it fails. Her arguments were insightful, forceful and apparently ignored by the Commission.

The European Commission has heard the large operators' arguments before and was convinced to delay urgent regulatory interventions. In 1999/2000, there was an urgent need to open the "last mile" of telecoms infrastructure to competition, in order to boost Internet access in Europe. The Commission decided against the legislation and opted to "wait and see". When nothing happened, they proposed a Recommendation on opening the market. When this also failed, they proposed a Regulation which was implemented well in some countries and badly in others, partly due to the rushed nature of the legislative intervention. "Wait and see" had failed European citizens.

The European Commission heard those arguments again when it started asking questions about the huge cost of mobile phone roaming. After initially waiting to see the scale of the issue, it started investigating the problem at the end of 2004 and a Regulation entered into force in June 2007. It took a further three years to deal with data roaming. The cost of this "wait and see" delay was the loss of millions of Euro for European businesses and European citizens. "Wait and see" had failed European citizens again.

And now, when developing policy to address interferences with private communications, when developing a policy which deals with a core element of modern democracy, the Commission has decided to "wait and see". This time, however, the Commission will not be able to intervene once all other options have failed.

Once Internet intermediaries start interfering more overtly with communications, they will find it more and more difficult to argue that they should be entitled to do this for their own benefit, but not for other vested interests. Already, access providers are being asked to block peer to peer communications (see the Scarlet/Sabam case) and to block certain websites for the vested interests of the copyright industry, to block gambling websites for the benefit of vested interests of national gambling monopolies (in France, Italy and elsewhere) and to block websites accused of containing child abuse material, to hide the inadequacy of national administrations that are unwilling to make the effort to have the crime scenes taken offline and to prosecute the criminals behind them.

When the Commission finally decided to act in relation to unbundling and roaming, it just had to face the lobbying power of the telecoms companies. With the non-neutral Internet, however, things will be very different. It will face the opposition not just of the large telecom providers, but also every company and organisation with a vested interest in restricting access to communication. It will also face the opposition of organisations arguing for policing of the net by access providers. The OECD is currently discussing how Internet intermediaries can police the Internet to achieve public policy objectives, the Council of Europe has asked for "reflection" on the liability of intermediaries in relation to online intellectual property infringements, the ACTA Agreement (which the EU is currently finalising) calls for the cooperation of Internet intermediaries in combating online intellectual property infringements, the UN has called for their cooperation to protect children online, the OSCE is discussing how they can cooperate to address hate speech. The list is endless.

Once the Commission has waited and seen that regulatory intervention is needed, it will be too late. Just wait and see.

The "Sabam vs Scarlet"-case will be continued before the European Court of Justice (7.02.2010)
http://www.timelex.eu/en/blog/p/detail/the-sabam-vs-scarlet-case-will-...

OSCE - Role of the Internet industry in addressing hate on the Internet (10.05.2010)
http://www.osce.org/documents/odihr/2010/05/44808_en.pdf

OECD - The Economic and Social Role of Internet Intermediaries (16.06.2010)
http://www.oecd.org/dataoecd/8/59/45997042.pdf

UN (Tunis Agenda) (18.11.2005)
http://www.itu.int/wsis/docs2/tunis/off/6rev1.html

ACTA (15.11.2010)
http://trade.ec.europa.eu/doclib/docs/2010/november/tradoc_147002.pdf

(Contribution by Joe McNamee - EDRi)