Net Neutrality: Measuring the Problem, Assessing the Legal Risks

IBEI Working Papers 2013/42 Telefonica Chair Series

24 Pages Posted: 16 Oct 2014

See all articles by Christopher Marsden

Christopher Marsden

Monash University - Faculty of Law; Monash University, Faculty of Law

Date Written: December 1, 2013


Network neutrality is a growing policy controversy. Traffic management techniques affect not only high-speed, high-money content, but by extension all other content too. Internet regulators and users may tolerate much more discrimination in the interests of innovation. For instance, in the absence of regulatory oversight, ISPs could use Deep Packet Inspection (DPI) to block some content altogether, if they decide it is not to the benefit of ISPs, copyright holders, parents or the government. ISP blocking is currently widespread in controlling spam email, and in some countries in blocking sexually graphic illegal images. In 1999 this led to scrutiny of foreclosure of Instant Messaging and video and cable-telephony horizontal merger. Fourteen years later, there were in 2013 net neutrality laws implemented in Slovenia, the Netherlands, Chile and Finland, regulation in the United States and Canada, co-regulation in Norway, and self-regulation in Japan, the United Kingdom and many other European countries. Both Germany and France in mid-2013 debated new net neutrality legislation, and the European Commission announced on 11 September 2013 that it would aim to introduce legislation in early 2014. This paper analyses these legal developments, and in particular the difficulty in assessing reasonable traffic management and ‘specialized’ (i.e. unregulated) faster services in both EU and US law. It also assesses net neutrality law against the international legal norms for user privacy and freedom of expression.

Keywords: Net Neutrality, Internet, ISPs, Copyright, Telecommunications Law, Human Rights

Suggested Citation

Marsden, Christopher T., Net Neutrality: Measuring the Problem, Assessing the Legal Risks (December 1, 2013). IBEI Working Papers 2013/42 Telefonica Chair Series, Available at SSRN: or

Christopher T. Marsden (Contact Author)

Monash University - Faculty of Law ( email )

Wellington Road
Clayton, Victoria 3800

Monash University, Faculty of Law ( email )

15 Imparo Ancora Way
Clayton, VIC 3800

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