The Open Internet Access (Amendment Etc) EU Exit Regulations 2018 SI 2018/1243 have been made, which will apply to the whole of the UK and take effect on 29 March 2019. The new Regulations use powers in section 8(1) of the European Union Withdrawal Act 2018 to address failures of retained EU law to operate effectively and other deficiencies arising from the UK leaving the EU.
The Open Internet Access Regulation (Regulation (EU) 2015/2120) establishes cross-EU rules which member states must apply to safeguard net neutrality. Net neutrality is the principle that Internet Service providers should treat all Internet traffic in an equal and non-discriminatory way. Certain aspects of the Regulation were implemented in the UK by the Open Internet Access (EU Regulation) Regulations 2016 SI 2016/607.
The 2018 regulations “fix deficiencies” arising on Brexit, including terminology contained in the legislation which will no longer be appropriate post EU-exit, for example references to “national regulatory authorities” which will be replaced by a references to Ofcom). The regulations also remove the need for Ofcom to take account of guidelines issued by the Body of European Regulators for Electronic Communications (BEREC) and remove a requirement for the European Commission to review the EU Regulation. A requirement for Ofcom to provide reports to the European Commission and BEREC will also be removed.
However, DCMS considers that the overall policy position will remain the same, with Ofcom regulating according to the same principles and able to reference the same scope of guidelines if it so wishes.
