The European Court of Justice in Luxembourg has handed down a ruling that backs the equal access for all to internet services – the principle known as net neutrality.
The court was ruling on a question from the High Court in Budapest, in a case between the telecommunications company Telenor Magyarország and the Hungarian national communications and media office.
The question concerned the application of an EU regulation on open internet access and users’ rights relating to electronic communications networks and services.
The case (in fact two similar cases) brought by the communications office against Telenor argued that the company was in breach of the rules on open access by offering paid packages to its customers which allowed them free access to certain services and applications outside the normal data limits.
For example, some service providers – not only in Hungary – have offered mobile phone packages which allow unlimited access, or zero tariff, for apps like Facebook and Twitter, which does not count towards the user’s paid data allowance.
In the case of Telenor, the company offered two such packages, MyChat and MyMusic. The MyChat package offered Facebook, Facebook Messenger, Instagram, Twitter, Viber and Whatsapp on zero tariff.
MyMusic, meanwhile, offered zero tariff for Apple Music, Deezer, Spotify and Tidal.
This, the communications office alleged, was an infringement of the EU regulation, which states, “When providing internet access services, providers of those services should treat all traffic equally, without discrimination, restriction or interference, independently of its sender or receiver, content, application or service, or terminal equipment”.
The question submitted to the European Court by the High Court in Budapest asked if the preferential treatment given by Telenor to some applications and services was an instance of positive discrimination, and therefore in breach of the regulation.
In its deliberations, the court considered submissions from not only the two parties, but also from the governments of Austria, the Czech Republic, Finland, Germany, the Netherlands, Romania and Slovenia, as well as the European Commission.
The court ruled that packages where end users are entitled to use a specific volume of data without restriction, without any deduction being made from that data volume for using certain specific applications and services covered by a zero tariff are incompatible with the European regulation.
The ruling clarifies the legality of the question of zero tariff apps, which form part of many packages on offer in other member states of the EU. The court’s decision now goes back to the High Court in Budapest for it to dispose of the case.