Network Neutrality: An Empirical Approach to Legal Interoperability

Abstract

The Internet is grounded on an open and interoperable architecture, giving rise to a quintessentially transnational environment. This global network of networks is, however, in natural tension with an international legal system based on mutually excluding legal frameworks, which have the potential to fragment the Internet, creating separated national intranets and conflicting cyberspaces. It seems important, therefore, to encourage the development of rules that can be used across jurisdictions, thus fostering the compatibility of the legal systems penetrated by the Internet and the internet economy. Promoting a 'legal interoperable' environment seems indeed an instrumental step to achieving a better-functioning Internet ecosystem, in which new technologies can spur, and in which cultural exchange is promoted. Advancing international legal interoperability of issues of systemic importance is not an easy task, but one way to start address this challenge is analysing existing initiatives aimed at producing regulatory models addressing specific issues. One particular topic that lends itself well to the analysis of the benefits and potential developments of legal interoperability is net neutrality. Indeed, it has been addressed by several jurisdictions, each using a specific approach. At the same time, a net neutrality regulatory model framework has already been elaborated and has inspired more than one organisation, such as the European Parliament and the Council of Europe. The principle is a good example of the importance of legal interoperability as it plays an instrumental function in promoting and protecting the free flow of information and the distributed nature of the Internet. Whereas it might be seen as a domestic matter, exclusively impinging upon how Internet traffic is managed at the national level, the level of protection of network neutrality determines immediate consequences on the Internet users’ capability to freely seek, impart and receive information regardless of frontier. For this reason, common tools defining shared principles or providing regulatory indications should be welcome in order to foster legal interoperability. This paper provides a brief analysis of the concept of interoperability and its potential transposition from the technical to the regulatory level. It also examines the relevance of network neutrality in order to maintain the original interoperable architecture of the Internet. After having identified common elements within the existing net neutrality frameworks, the paper suggests common principles that may be used to develop future legally-interoperable approaches, avoiding fragmentation and fostering legal certainty while diminishing transaction costs for businesses.