Regulating Zero-Rating in Europe

Abstract

This article analyses the changes in the regulatory analysis of zero-rating by national regulatory authorities in almost seven years of implementation of the European Union’s Regulation on Open Internet Access. The European Court of Justice issued three landmark judgments in cases C‑34/20 Telekom Deutschland (throttling), C‑5/20 Vodafone (tethering) and C‑854/19 Vodafone (roaming). The Court ruled that ‘zero-tariff options’, a form of zero-rating, violate the general obligation of providers of internet access services to treat traffic equally and without discrimination. The Court determined that these options fail to follow the stipulations of Article 3(3) of the Regulation on Open Internet Access. Prior to the judgments, the Open Internet Guidelines drafted by the Body of European Regulators for Electronic Communications (BEREC) recommended that national regulatory authorities should analyse zero-rating under Article 3(2) of the Regulation. BEREC recommended that they conduct a multi-factor analysis of the effects of zero-rating on the market. After the judgments, BEREC published updated guidelines stating that zero-rating as such is prohibited under Article 3(3), unless the zero-rating does not differentiate between applications based on user traffic. The authors argue that the judgments of the Court in conjunction with the updated Open Internet Guidelines provide NRAs and market actors with more legal certainty regarding the legality of zero-rating under the Regulation on Open Internet Access. Keywords: zero-rating; open internet; net neutrality; regulation; internet access service