EUROPEAN COMMISSION Competition DG Markets and cases II: Information, Communication and Media Antitrust: Telecoms
Brussels,
1 3 OCT. 2017
COM P/C- ] /LJ/2017/96191
A. E. Meer e-mail: aem@Safe-mail.net
Dear Madam, Sir, Thank you for your e-mail of 27 September 2017 to Commissioner Vestager, who has asked the Commission's Directorate General for Competition to reply to you on her behalf. In your message you express concerns regarding biased algorithms in respect to “net neutrality”, in particular algorithms used by certain social networks, search engines and online networking and instant messaging services. The so called principle of “net neutrality” you mention has a legal scope as far as Regulation (EU) 2015/2120 is concerned. Under these rules, blocking, throttling and discrimination of online content, applications and services by Internet Service Providers (ISPs) is not allowed in the EU, save for three exhaustive exceptions (compliance with legal obligations; integrity of the network; congestion management in exceptional and temporary situations) and users are free to use their favourite apps and services no matter the offer they subscribe to. However, the algorithms you are referring to are not related to ISPs. Therefore, these algorithms do not fall under the scope of Regulation (EU) 2015/2120. Besides regulation (EU) 2015/2120, please be aware that the so called principle of “net neutrality” you mention is not a legal principle which could be enforced as such by EU institutions. That is why there cannot be a legal conflict between the principle of “net neutrality” and algorithms. This is not to call into question the importance of algorithms in the information society or the influence of the principle of “net neutrality” on political discourse. As I understand your concern, your personal perception of “net neutrality” goes beyond the scope of Regulation (EU) 2015/2120, meaning that all algorithms should be neutral and the use of biased algorithms should be prohibited. Please note that under the current legal framework the use of biased algorithms is not per se abusive. Indeed, numerous innovative business models nowadays rely on the use of biased algorithms, and companies may do so provided they comply with the applicable national and EU legislation, in particular with regard to data protection. In this context I would like to draw your attention to the Commission’s proposal for an ePrivacy Regulation, which amongst other aims at ensuring that electronic communications services such as the ones you are referring to guarantee the same level of confidentiality of communications as traditional telecom operators. For further information on this proposal, please consult the Commission européenne, B-1049 Bruxelles / Europese Commissie, B-1049 Brussel - Belgium. Telephone: (32-2) 299 11 11. Office: Mado 28/39. Telephone: direct line (32-2) 296 49 77. Fax: (32-2) 296 98 19. E-mail: COMP-GREFFE-ANTITRUST@ec.europa.eu
following website regulation«.
»https://ec.europa.eu/digital-single-market/en/proposal-eprivacy-
As you addressed your concern to Commissioner Vestager, who is the Commissioner responsible for competition, let me further point out that the Commission's Directorate General for Competition is primarily responsible for the enforcement of the EU competition rules. These rules prohibit, amongst other, anti-competitive agreements (Article 101 TFEU) and the abuse of a dominant position (Article 102 TFEU). Whether or not there is a violation of these rules depends on a range of factual, legal and economic elements. Based on the information you provided, there is no indication that the described behaviour may constitute an infringement of Articles 101 or 102 TFEU. That being said, the Commission is closely following the public debate on the importance of algorithms in the information society and values your input. Please be assured that consumer perceptions are an appreciated direct source of market knowledge. Thank you for having chosen to share your concerns with us.
Yours fāithfulļ3|
Head of Unit
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