March 23, 2020

The statement notes that as measures to limit physical interactions lead to increased volumes of online teaching and teleworking arrangements, the demand for internet capacity has increased. Telecom operators, content and application providers and users can contribute to the smooth functioning of the Internet during this critical period, it says. People are therefore encouraged to “make responsible use of the internet” with settings that reduce data consumption; content and application providers are also called on to co-operate with telecom providers and to consider temporarily adapting the throughput of video streaming.

The statement notes that increase in internet traffic has not yet led to general network congestion. The data gathered from European operators indicate, however, that internet traffic is increasing. In anticipation of capacity issues, the Commission and BEREC are taking measures to preserve the proper functioning of the internet.

The Commission and BEREC say that they remain fully committed to ensuring an open internet in the EU and to enforce the open internet access provisions of the Net Neutrality Regulation (2015/2120/EU), which prohibits operators from blocking, slowing down or prioritising traffic. Traffic management measures are authorised if they are reasonable, meaning that the measures must be transparent, non-discriminatory, proportionate and based on objectively technical differences of traffic (Article 3(3)). Such measures cannot monitor specific content and cannot be maintained for longer than necessary.

The statement reminds readers that pursuant to the Regulation, operators are authorised to apply exceptional traffic management measures, inter alia, to prevent impending network congestion and to mitigate the effects of exceptional or temporary network congestion, always under the condition that equivalent categories of traffic are treated equally. Operators can avail themselves of this exception if such traffic management measures are necessary to solve or to prevent the congestion.

The statement also sets out what to do in case of (impending) network congestion. Essentially, operators should take a restrictive interpretation of the concept, given that it is an exception to the general principle of open internet.

Operators should objectively assess that the levels of traffic are very high compared to a similar reference period, and consider whether, absent certain taken measures, users would be negatively affected by the congestion. Exceptional congestion means a situation that is unpredictable or unavoidable arising, for example, because of multiple technical failures, unexpected changes in routing of traffic not under the operator’s control, or large increases in network traffic linked to the current pandemic crisis or another emergency situation beyond the provider’s control. Finally, solutions to the problem must be proportionate and limited in time. To read the statement in full, click here.