Network Neutrality and Privacy According to Art. 8 ECHR

European Journal of Law and Technology 2(3) 2012

Tilburg Law School Research Paper No. 017/2011

21 Pages Posted: 2 Sep 2011 Last revised: 1 Feb 2014

See all articles by Bert-Jaap Koops

Bert-Jaap Koops

Tilburg University - Tilburg Institute for Law, Technology, and Society (TILT)

Jasper P. Sluijs

Utrecht University School of Law

Date Written: September 1, 2011

Abstract

This article presents a structured approach to studying the privacy implications of the network neutrality debate according to art. 8 of the European Convention of Human Rights (ECHR). Network neutrality is a topic discussed in telecommunications policy circles, on how actively Internet Service providers (ISPs) may manage the traffic of content on their networks. While more active network management may lead to more efficient bandwidth allocation, it also strengthens the gate keeping position of ISPs — with possible negative effects in terms of fairness. It is often alleged in European public interest circles that network management that goes beyond ‘neutral’ handling of traffic violates the privacy of Internet users. However, such claims are mostly rhetorical in character and are typically not supported by legal research. We attempt to fill this lacuna by comparing network neutrality related privacy claims to art. 8 ECHR case law. Our findings suggest that an art. 8 ECHR violation due to network management is not as straightforward as sometimes assumed, and mainly depends on the form and technique of network management, and the level of State involvement in network management.

Keywords: Network Neutrality, Privacy, European Law, ECHR Law, Telecommunications

JEL Classification: K23, K39, L96

Suggested Citation

Koops, Bert-Jaap and Sluijs, Jasper P., Network Neutrality and Privacy According to Art. 8 ECHR (September 1, 2011). European Journal of Law and Technology 2(3) 2012; Tilburg Law School Research Paper No. 017/2011. Available at SSRN: https://ssrn.com/abstract=1920734 or http://dx.doi.org/10.2139/ssrn.1920734

Bert-Jaap Koops

Tilburg University - Tilburg Institute for Law, Technology, and Society (TILT) ( email )

P.O.Box 90153
Prof. Cobbenhagenlaan 221
Tilburg, 5037
Netherlands

Jasper P. Sluijs (Contact Author)

Utrecht University School of Law ( email )

Janskerkhof 3
Utrecht, 3512 BK
Netherlands

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