EU failed to apply technology neutrality in regulating communication services

That is one of the conclusions of Ilse van der Haar’s PhD-thesis, which she defended at Tilburg University in the Netherlands. The European Union could have applied the priciple of technology neutrality better in its Audiovisual Media Services Directive.

The electronic communication sector is very important for Europe’s economic growth and social cohesion. The convergence of previously different network technologies (such as cable, mobile networks, satellite and ADSL), which could subsequently distribute the same types of services (television programmes, for instance), created a need for legislation that is not based on technology. The principle of technology neutrality was introduced by the European Union in 2002 to provide for this need.

A discussion soon broke out about its precise meaning: whether all communication services that (can) compete, like fixed and mobile telephony, should be regulated in precisely the same way, and whether authorities can still actively stimulate the development of new technologies such as glass fibre.

Ms Van der Haar, a lawyer, investigated the origin and application of the principle of technology neutrality in telecommunication legislation. She discovered that the introduction of the principle was based on various motives – non-discrimination, durability, efficiency and certainty for consumers. She concluded, however, that 'efficiency' seems to be the dominant motive for applying the principle in telecommunication legislation. But governments must avoid taking technological decisions out of the hands of the market parties, says Van der Haar. Prior to regulation, the authorities must have a clear reason for intervening in the market, if undesirable side effects (such as government failures) are to be avoided.

Content and network are closely linked, and in practice it is difficult to distinguish between the regulation of content and of networks, as the European Union currently does. Communication services consist of both content (for example film or sound) and network elements (to distribute the information). It is therefore important that the close knit between content and distribution network is recognized in the regulation of electronic communication services, states Van der Haar.

The legislation relating to the substantive component of communication services was recently revised at the European level. Ilse van der Haar uses the experiences with the principle of technology neutrality in telecommunication legislation for an analysis of the resulting new Audiovisual Media Services Directive. She concludes that the criticism this European Directive has met could have been obviated. The criticism concerned the unnecessary expansion of the legislation from traditional broadcasting services to interactive, online services. Better application of the principle of technology neutrality based on efficiency could have prevented this.

Ilse van der Haar (1978) studied law at Maastricht University in the Netherlands. Subsequently she worked as member of a project team on the report on media policy for the Dutch Scientific Council for Government Policy (WRR). She is currently engaged by Tilburg University as academic manager for the Tilburg Law and Economics Center (TILEC), and assistant professor for the Department of International and European Public Law.