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Deutsch: Stellungnahme des EDSB zu Netzneutralität und Datenschutz

Peter Hustinx, the European Data Protection Supervisor (EDPS) adopted an opinion on 7 October 2011 on the European Commission Communication on the open internet and net neutrality in Europe, stressing the necessity of respecting the fundamental right to privacy and data protection of users, in particular in terms of confidentiality of communications.

The Opinion addresses a very controversial subject and comes in the light of the Communication adopted by the Commission on 19 April 2011 and the Commission's public consultation preceding the Communication. It also takes into consideration the draft Council conclusions on net neutrality.

Net neutrality refers to whether Internet service providers (ISPs) should be allowed to monitor network traffic, filter or restrict Internet access of their users. The idea is that "information on the Internet should be transmitted impartially, without regard to content, destination or source, and that users should be able to decide what applications, services and hardware they want to use. This means that ISPs cannot, at their own choice, prioritise or slow down access to certain applications or services such as Peer to Peer ('P2P'), etc."

The EDPS draws attention to such practices on certain inspection techniques used by ISPs that may be highly intrusive, involving the monitoring of content of communications, websites visited, emails sent and received, the time when this takes place, enabling filtering of communications. In Hustinx's opinion, monitoring of the ISPs' compliance with data protection rules should be closely monitored.

The confidentiality of communications is a fundamental right protected by the European Convention for the Protection of Human Rights and Fundamental Freedoms, the Charter of Fundamental Rights of the European Union as well as the EU ePrivacy Directive.

Hustinx believes there is a tendency of increased monitoring and inspection techniques from ISPs which raises serious issues regarding the protection of users' privacy and personal data and therefore, more has to be done to devise and implementsatisfactory policies on the matter.

He therefore calls on the Commission to initiate a debate involving all relevant stakeholders, for the clarification of the data protection legal framework applying in this case.

In his Opinion, the EDPS has made some recommendations which include: the determination of legitimate inspection practices needed to ensure the smooth flow of traffic or carried out for security purposes; the determination of the cases when monitoring requires the users' consent (such as filtering aimed to limit access to certain applications and services, such as peer to peer); and, in such cases, the necessity of guidance regarding the application of the necessary data protection safeguards (purpose limitation, security etc).

Hustinx also believes national authorities and BEREC should monitor the market situation. "This monitoring should result in a clear picture describing whether the market is evolving towards massive, real-time inspection of communications and issues related to complying with the legal framework." "Further analysis of the effects of new practices in relation to data protection and privacy on the Internet", is also necessary.

Based on such analyses, additional legislative measures might be necessary in which case "the Commission should put forward policy measures aimed at strengthening data protection rules and ensuring legal certainty. New measures should clarify the practical consequences of the net neutrality principle and guarantee users the possibility."

Opinion of the European Data Protection Supervisor on net neutrality, traffic management and the protection of privacy and personal data (7.10.2011)
http://www.edps.europa.eu/EDPSWEB/webdav/site/mySite/shared/Documents/...

Press Release "A serious policy debate on net neutrality must effectively address users' confidentiality of communication" (7.10.2011)
http://www.edps.europa.eu/EDPSWEB/webdav/site/mySite/shared/Documents/...

Busting net neutrality may amount to spying, says EU (13.10.2011)
http://www.theregister.co.uk/2011/10/13/isps_traffic_managemnet_may_br...

EDRi-gram: EDRi's answer to net neutrality consultation (6.10.2010)
http://www.edri.org/edrigram/number8.19/edri-net-neutrality-position

EDRi-gram: Draft Council conclusions on Net Neutrality (27.07.2011)
http://www.edri.org/edrigram/number9.15/net-neutrality-council-conclus...