From Competition to Freedom of Expression
Jasper Sluijs from Tilburg University shares his thoughts on the european net neutrality debate
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“From Competition to Freedom of Expression: Introducing the ECHR in the European Network Neutrality Debate” – Jasper Sluijs, Tilburg University (TILEC)
The present article stresses the relevance of freedom of expression according to art. 10 ECHR in the European network neutrality debate, which has been overlooked both in telecommunications policymaking and research in Europe. Since the liberalization process of the 1980s the European regulation of telecommunications has increasingly become grounded in law and economics. Under the current regulatory framework, therefore, telecommunications services are subject to generic competition law by default, while any sector-specific regulation is dependent on the existence of so-called ‘significant market power’ of firms. European telecommunications law has come under popular attention with the emergence of the network neutrality debate, which concerns ownership and control on the Internet. The debate concentrates on the role of Internet Service Providers (ISPs) as a potential gate keeper for Internet access of end-users and online content providers. In line with standard practice in European telecommunications policy the European institutions have framed their response to the issue of network neutrality mainly in economic terms, arguing that competition between ISPs should mitigate network neutrality concerns. At the same time, European civil society organizations have attempted to frame network neutrality in terms of fundamental rights, particularly freedom of expression. Under this rationale gate keeping ISPs would have a chilling effect on free speech. This plead for a fundamental rights approach to network neutrality has found some resonance in EU policymaking, and is now referenced more explicitly in the European regulatory framework for electronic communications. However, while a small but significant literature has developed on how network neutrality relates to fundamental rights in the US, there is little, if any, substantial legal research on whether and to what extent European fundamental rights law has an effect on the network neutrality debate. This article relates network neutrality to the rich body of freedom of expression case law according to the ECHR, and asks to what extent this jurisprudence is of relevance for network neutrality discussions. The findings of this research demonstrate potential problems concerning private enforcement of ECHR law when interpreting network neutrality through freedom of expression law, and reveal unintended consequences of the Strasbourg Court’s approach to commercial expression. This underscores the continued relevance of the Convention in complex technological debates and present telecommunications policy. Moreover, this article focuses on how network neutrality sheds new light on a number of ongoing doctrinal debates in ECHR scholarship, such as positive obligations and the margin of appreciation of National courts concerning commercial expression.