1. Net Neutrality in the
Netherlands
and human rights
Matthijs van Bergen
30 May 2013
Network Neutrality and Human Rights
Multi-stakeholder dialogue organized by the
Council of Europe

2. Who am I
 Internet citizen
 Volunteer at Bits of Freedom
 Legal advisor at ICTRecht
 PhD candidate at Leiden University (eLaw Center)

3. Internet
Citizen

4. Bits of Freedom
Volunteer
(that’s not me)

5. Legal advisor at
ICTRecht

6. Promotors
Wouter Hins
&
Bart Schermer
PhD candidate
at the
University of Leiden

7. The
foundation
of the
Internet is
democratic

8. Power is decentralized when it can and
centralized only when it must

9. The network serves
the edges and not the
other way around

10. The Internet even
used to respect
your privacy
© Peter Steiner, 1993

11. Greed is eroding the democratic foundation of the
Internet
 Internet access providers got jealous of
Google and others’ profits and want to
monetize control over content
This violates the separation
between the application and
transport layers

12. KPN got greedy

13. KPN’s evil plans
 ‘Monetize’ WhatsApp usage, by asking an extra
fee to refrain from blocking WhatsApp
(i.e. Tony Soprano’s vision of networking)
 Spy on its users using DPI

14. If Internet providers could
charge users extra to
refrain from blocking
specific services, this would
happen

15. This is not just
about money
The
‘constitution’ of
the Internet is at
stake

16. The Dutch law (7.4a TA) in short
(Not the literal text, but meaning is very close)
 No hindering or slowing down applications and
services on the Internet, unless NECESSARY to:
 minimize the effects of congestion, giving equal
treatment to equal types of traffic;
 preserve integrity and security of network, service
and terminal equipment;
 restrict spam if user has given consent; or
 give effect to a legislative provision or court order.
 [this should have been here too: comply with an
explicit request from the subscriber, provided that this
request does not imply lower subscription fees]

17. How to apply the test
1. Is the provider slowing down or hindering traffic
(incl. through pricing)?
2. Is such a measure prescribed by the contract or
general terms?
3. Is there a legitimate aim for the measure?
4. Is the measure necessary in a democratic, end-
to-end network; can’t the problem be solved at
the edges?
5. Is the measure proportionate; isn’t there another
measure possible that is less severe?

18. Margin of appreciation
 Internet providers should have a margin of
appreciation to decide which measures are
necessary
 More margin of appreciation when competition is
strong and switching is easy
 More margin of appreciation if there is less
consensus among technicians about the
effectivity of a measure

19. This means

20. Internet providers can’t blackmail
providers of online content and
applications to pay for not getting
blocked
Internet providers can’t force users to
pay extra if they want to keep using
their favorite applications

21. If there is congestion, proportionate
measures can be taken
But paying to get priority is not OK

22. IP-based services over private IP networks which
are not Internet access services, are not within
the scope of this law, and IP-TV and VoIP can
have priority on the provider’s network.
But no slowing down or blocking
Skype, Youtube or other Internet
based VoIP or TV providers!!!!

23. If it is possible to let the user control what applications
have priority and when, that is the best

24. 7.4a sub 3
Providers of Internet access services do not make the
prices for Internet access subject to the online applications
or services used or offered through the Internet access
service.
Therefore: subscriptions with low data
caps for public Internet access and
unlimited data for managed services,
should be regarded with very strong
suspicion.

25. A model law on net neutrality
Internet providers shall refrain from any interference with
or restriction to Internet users' freedom to access and
distribute content through applications and devices of
their choice, unless such interference is strictly necessary
and proportionate to:
a) minimize the effects of congestion, giving equal
treatment to equal types of traffic;
b) preserve integrity and security of network, service and
terminal equipment;
c) restrict spam if user has given consent;
d) give effect to a legislative provision or court order; or
e) comply with an explicit request from the subscriber,
provided that this request does not imply lower
subscription fees.

26. Food for thought
• NN laws are restrictions on the right to property,
which is also a human right. Where opposing
fundamental rights are concerned, member
states have a wider margin of appreciation to
strike their own balance; are positive obligations
to protect NN possible in this context?
• Transport layer vs content layer: please do not tie
search neutrality and ‘Facebook neutrality’ in with
net neutrality. State interference in Google’s
editorial discretion over search and online
content is a different issue (Solum and Chung
call this a “layer violation”)

27. CC attributions
 Digital globe – Rgbstock license
 Power ranger – State Farm (flickr user)
 Arab spring picture – FreedomHouse (flickr user)
 Network – sjcockell (flickr user)
 Catastrophic failure – cowbite (flickr user)
 Internet subscription package – i.imgur.com (reddit user)
 Information super tollway – Kalil Bendib
 Constitution – jmorgan (flickr user)