On 3 January, France’s second largest internet service provider (“ISP”), Free, started blocking online adverting for its subscribers. This in itself did not come across as shocking, as this feature is already available to consumers (e.g., Adblock Plus on Firefox and Chrome). It was, rather, the way Free activated this functionality that was the subject of controversy in France. Indeed, the change took place through an unannounced update of its modems and was activated by default. Internet content providers, who rely on advertising to provide free content and services to end-users, reacted immediately, asking the French authorities to take action.
It would be easy to presume that Free acted solely in its customers’ interests, however it appears that this would not entirely reflect the reality. The move seems, rather, to have been aimed at threatening Google’s revenues, which are mainly based on advertising. Indeed, Free has long tried to make Google pay for optimal access to its network. The battle between the two companies rests upon the fact that YouTube (Google’s video-streaming service) requires large amounts of bandwidth to be used in order for subscribers to connect. Free therefore considers that Google should participate financially in upgrading of the system to handle these bandwidth needs. In a decision of 22 November 2012, the French telecoms regulator (“ARCEP”) opened an administrative enquiry into the technical and financial terms and conditions governing the routing of online traffic between YouTube and Free.
This debate should also be seen in the context of the necessity for ISPs to make investments in ultrafast broadband infrastructures, as whished by the French government. Through its action, Free may want to raise the problem that, without the participation of content providers, "investmentswill have to be made at a slower pace".
Notwithstanding the company’s motivations, the possibility for ISPs to regulate the content available online raises issues relating to the principle of net neutrality. Net neutrality is defined in EU instruments as the ability of end users to access and distribute information or run applications and services of their choice. It follows that all content and data should be treated in exactly the same way, regardless of their origin. Yet, by filtering web content, Free arguably went against this principle.
Fleur Pellerin, the French digital minister, reacted quickly and Free removed its ad blocker on 8 January. The round table on Net Neutrality that the minister subsequently decided to organise was not deemed sufficient. The issue was referred to the Conseil National du Numérique, a committee created in April 2011 to help French public authorities on the stakes of the digital economy and to create on-going discussions. No decision was taken as to a possible law which would enshrine net neutrality. ISPs were left free to monitor Internet content.
The Digital Agenda Commissioner, Neelie Kroes, also reacted by publishing an article in a French newspaper. She invoked customers’ freedom to make choices regarding their Internet subscription and online activity. However, she advocated for the possibility to subscribe to differentiated, limited Internet offers, possibly for a lower price. Transparency and effective consumer control were considered as crucial elements in this regard: “on net neutrality, consumers need effective choice on the type of internet subscription they sign up to. That means real clarity, in non-technical language.” She then acknowledged the possibility for ISPs to distribute software aiming at blocking some or all advertising, but reminded stakeholders that many content providers rely on an advertising-driven business model and that “businesses should accept that different consumers will have different preferences, and design services accordingly”. Interestingly, it seems that Neelie Kroes’ current position differs from her previous opposition to tiered access, for which she advocated in 2010 when she said that ISP “shouldn’t be allowed to limit the access to service or content out of commercial motivation, but only in cases of security issues and spamming.”
Despite reaffirming the importance of the principle of net neutrality, both the French government and the Digital Agenda Commissioner have implicitly supported ISPs. Google, on the contrary, faces various investigations at the EU and the Member States levels. For instance, the French authorities are currently looking into allegations that Google has paid less taxes than required. In this fight between Free and Google, the French ISP seems, therefore, to have the upper hand.
On 17 January, Free reinstated the advertising blocking functionality for some of its customers (including approximately 5 million subscribers to Free Mobile). This time, Free proposed it as an option which is by default inactive. Finally, it should be noted that French newspapers are also trying to force Google to pay them for referencing their content. Today, Google reportedly proposed a €50 million deal to French publishers. This would involve Google buying advertising space on newspaper and online, as well as a commercial collaboration between the publishers and Google’s search engine and, finally, the use by publishers of AdSense, Google’s advertising platform.