No more “free” subscription to Facebook?

Polish mobile operators will have to modify their offers. The Court of Justice of the EU decided that it is unacceptable to favor specific services and applications.

Today, Polish consumers often see an offer from an operator such as “you will get 50 GB per month, but using Facebook, Instagram, Whatsapp or Spotify will not consume data.” For many people, this is an important factor, because a significant percentage of the real transfer used comes from instant messaging and music streaming services.

It turns out, however, that such an offer from telecommunications operators is inconsistent with the principle of internet neutrality, and thus with EU law. He suggested it quite clearly The Court of Justice of the EU in the judgment of September 15, 2020 (file reference number C-807/18).

No more “free” access, incl. to Facebook? It is unacceptable to favor specific services and applications

The case concerned the Hungarian company Telenor providing, inter alia, internet access services. Among the services offered to customers were two preferential access packages (“zero rate”), the specific feature of which was that the data transmission generated by certain specific services and applications was not taken into account in the consumption of the amount of data purchased by the customers. Moreover, once this amount of data was exhausted, customers were still able to use these specific applications and services without restriction, while blocking or slowing down measures were applied to the remaining available applications and services.

So – write out, paint over – the solution used by Polish operators.

The problem is that some service and application providers in Hungary found this solution to be discriminatory. In their opinion, it caused the big players to become even larger, while the smaller ones had limited opportunities for development. For example, many subscribers decided to purchase a subscription in a specific streaming service precisely because using it did not “eat” the data from the purchased package.

“Such bundled offers may increase the use of privileged applications and services and hence cause less interest in using other available applications and services, given the means by which the ISP makes their use technically more difficult. if not impossible, ”concluded the Court of Justice of the EU. He further pointed out that package offers with a “zero rate” may, in principle, violate Art. 3 sec. 2 and art. 3 sec. 3 of the EU Regulation 2015/2120 establishing measures on open internet access. At the same time – as is usually the case with judgments of the Luxembourg tribunal – the final decision must be made by the national court.

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