From Competition to Freedom of Expression: Introducing Art. 10 ECHR in the European Network Neutrality Debate

Human Rights Law Review 12(3) 2012

TILEC Discussion Paper No. 2011-040

49 Pages Posted: 15 Sep 2011 Last revised: 24 Dec 2013

Date Written: September 15, 2011

Abstract

Network neutrality concerns a heated debate 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 regulatory response to the issue of network neutrality has been framed mainly in economic terms. At the same time, European civil society organizations have interpreted network neutrality in terms of fundamental rights, particularly freedom of expression. Moreover, while the amended regulatory framework for telecommunications now includes explicit references to fundamental rights, it remains unclear if and how fundamental rights should be applied to network neutrality disputes. This article relates network neutrality to the rich body of Art. 10 ECHR case law, and asks to what extent this jurisprudence is of relevance to network neutrality discussions. The findings of this research reveal that the claim that network management by ISPs would violate end-users’ freedom of expression is less straightforward than often assumed. Moreover, the opposite case in which network neutrality regulation violates ISPs’ freedom of expression is less far-fetched than it may seem. These conclusions are meant to move the European discussion on network neutrality and fundamental rights beyond rhetoric, towards a more substantial and analytical approach.

Keywords: network neutrality, freedom of expression, telecommunications law, ECHR law, European law

JEL Classification: K23, K33, L96, L86

Suggested Citation

Sluijs, Jasper P., From Competition to Freedom of Expression: Introducing Art. 10 ECHR in the European Network Neutrality Debate (September 15, 2011). Human Rights Law Review 12(3) 2012; TILEC Discussion Paper No. 2011-040. Available at SSRN: https://ssrn.com/abstract=1927814 or http://dx.doi.org/10.2139/ssrn.1927814

Jasper P. Sluijs (Contact Author)

Utrecht University School of Law ( email )

Janskerkhof 3
Utrecht, 3512 BK
Netherlands

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