OUT-LAW Radio investigated whether there was any legal barrier in the UK to an ISP slowing or blocking access to video services, such as the iPlayer or YouTube, and found that there are none. As long as an ISP explains its actions in its Fair Use Policy (FUP) or statements of Terms and Conditions (T&C) then it is permitted to block whatever it likes.

In other words, if your ISP decided that you couldn’t access the YouTube website unless you paid them extra then you would have no choice but to accept. A spokeswoman for telecoms regulator Ofcom said that ISPs all had to abide by its General Conditions, but that these did not specify that all Internet traffic had to be treated equally. Ofcom considered the matter but never reached any conclusions.

A lawyer at consumer protection body Which?’s legal division added that consumers would only have grounds for complaint if a connection was interfered with without notification.

Stephen McGlade of Which? Legal Services:

“The Supply of Goods and Services Act relates to their broadband contract so basically there is an obligation there to provide the service that was previously promised and as described. If there is any situation where the internet connection is reduced in some way obviously one would have to look at the service contract, at the terms and conditions, to see what it says in relation to that service agreement.”

Naturally some degree of traffic management is often necessary, especially on budget priced broadband services, to help balance network load and give everybody a reasonable service. The problem is that the absence of Net Neutrality can also have a darker side, where UK ISPs effectively have the power to censor the entire Internet; not that ‘most’ of them would want to.

Imagine if you were only allowed to view selected websites or content. For example, consider the outcry if the boss of an ISP with a dislike for the BBC decided to block their websites and content. There are clearly some very sensitive political as well as service implications.

It is, in our view, patently absurd for any ISP to suggest that legal content developers should pay them (the ISP) for the delivery of their content. Content is what makes the Internet what it is and, while the costs of bandwidth may not always be cheap, it is ultimately the consumer that has to pay for what they use; just like your gas, water or electricity supply.

Just 5% expected their ISP to block or reduce the quality of specific legitimate websites, applications or services. Similarly less than 5% also expected their ISP to charge an additional fee for accessing content, applications or services that require higher Internet speeds. These findings remained broadly similar across all three countries.

Joint Statement from the companies involved: “EU lawmakers should make sure that national authorities have the powers they need to act in cases where traffic management by telecommunication companies constitute unnecessary, discriminatory and/or anti-competitive behavior.”

Elsewhere 97% of UK Internet users had received no communication from their ISP regarding Traffic Management policies, which dropped to 91% in France and 88% in Germany. In response to discovering that their ISP was blocking / limiting their service, many consumers would complain. Furthermore, between 7 and 15% would switch ISP even if the costs were higher.

The survey also asked which activities consumers regularly use a computer for at home, whether for business or personal use. The results were as follows. We note that online gaming (multiplayer) is notably by its absence:

Finally, over half hold their ISP responsible if they have a loss of Internet connection (58%) or a poor connection (59%), while 45% would blame their ISP when experiencing a slower speed than usual. Interestingly 44% would also blame their ISP for an inability to access certain websites or Internet services and 30% would blame them if their screen froze while online.

Naturally the survey has been timed to coincide with a crucial EU debate on several proposed amendments to telecom rules. The changes could allow ISPs free reign to prioritise (favour) traffic to specific services and or restrict others, thus creating a tiered Internet experience. Final legislation is expected to be adopted in April.

Typically service specific restrictions are nothing new to most UK ISP consumers, since many providers already adopt traffic management policies. However the new rules could allow even more freedom for ISPs to limit access, which risks stifling creativity and new ideas. For example, imagine if an ISP only let you view the BBC’s iPlayer Internet TV (IPTV) service but not Channel4 or ITV’s? That would hardly be fair.