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Net neutrality: Dutch court overturns zero rating ban

In the Netherlands, a new part of the law on net neutrality is apparently not to be complied with. The District Court of Rotterdam recently put down a provision against zero rating, which Parliament inserted into the existing national guidelines for an open Internet last year. This is reported by the civil rights initiative European Digital Rights (EDRi) and, citing a judgment from the end of April.

With the zero rating, mobile network operators do not count certain transfers against the data volume included in a tariff. You can prefer your own offers or those of partners, especially when streaming.

Regulators against zero rating

The trigger for the dispute was an offer that T-Mobile added to its range shortly after the law was passed. It can be compared with the local "Stream On" offer from Deutsche Telekom, which the Federal Network Agency is currently examining. The service enables customers to use music services such as Spotify or Tidal regardless of their data plan. The EDRi member Bits of Freedom complained about the offer to the Dutch regulatory authority ACM (Autoriteit Consument en Markt). The civil rights activists complained that T-Mobile violated the principle of equal treatment and practically dictated to users which streaming services they should use.

The ACM agreed with this view and decided that the zero-rating offer violated the existing requirements for net neutrality. T-Mobile took action before the court in Rotterdam against the decision, which now overturned the provision of the law. The chamber ruled that the relevant EU regulation for an open Internet does not prohibit price discrimination per se, but must be decided on a case-by-case basis. In addition, the requirements to treat data packets equally relate solely to the technical level of the data traffic and not to the costs for network access. The Dutch zero rating provision is therefore not tenable.

Criticism of the EU regulation

Right from the start, critics complained that the EU regulation was not watertight and opened wide back doors for special services, toll "overtaking lanes" and zero ratings. The body of European regulators for electronic communications (Gerek) laid down more specific guidelines on the text from Brussels in August. Accordingly, the network operators should actually no longer have much leeway for price discrimination including zero rating. If this would only benefit individual applications, this would violate user rights, the regulators found.

The Rotterdam judges may not have carefully considered the interpretation aid for the regulation or did not consider it authoritative. They also saw no reason to submit the case to the European Court of Justice (ECJ) and thus create legal clarity for all member states. Bits of Freedom civil rights activists now hope the ACM will appeal the verdict. Otherwise net neutrality is not only in danger in the Netherlands, but in the whole of the EU. (anw)

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