Device neutrality: openness, non-discrimination and transparency on mobile devices for general internet access

Since the ‘net neutrality’ debate began in the early 2000s, the internet ecosystem has evolved and European policymakers now face a different type of gatekeeper.

This CERRE Tech, Media, Telecom report identifies the main competitive bottlenecks and discusses whether the key pillars of net neutrality regulation – openness, non-discrimination and transparency – should also apply to certain types of devices, such as smartphones and laptops.

Assuming that smartphones are likely to be the first choice for consumers accessing the internet and that they are, therefore, a crucial element of the internet access value chain, the authors of the CERRE report make concrete suggestions, focusing on operating systems, app stores and browsers.

“Crucially, the policy objective should be to enable consumers to bypass gatekeepers and access content via multiple channels, but not ‘neutrality’ in the narrow sense,” said Jan Krämer (co-author of the report and CERRE Academic Co-Director). “Non-neutral conduct is important for innovation, investment, security and privacy.”

In light of existing EU regulation, specifically the Platform-to-Business (P2B) Regulation and the Digital Markets (DMA) and Digital Services (DSA) Acts, the report makes a number of recommendations, aiming to ensure openness, non-discrimination and transparency when accessing the internet on mobile devices.

More accessible and less discriminatory app stores

As they represent a gateway for consumers to access other content and apps, the authors, Jan Krämer and Richard Feasey, make several policy recommendations for app stores that aim to strike a balance between mitigating the competitive gatekeeper advantage and maintaining the user convenience offered by pre-installed apps. These include:

1. Enabling alternative app stores to be easily installed on devices, including by requiring the pre-installed app stores to host rival app stores with independent payment systems.
2. Unbundling the dominant app store from other apps.
3. Banning self-preferencing of apps in app stores or browsers.
4. Careful consideration of how the transparency and redress mechanisms for dominant app stores under P2B, DMA and DSA obligations may interact when imposed concurrently.

“In important areas, including app stores and browsers, our recommendations build upon, but go further than, the obligations under the P2B regulation and the foreseen obligations under the DMA and DSA.” – Richard Feasey (co-author of the report and CERRE Senior Advisor)

Openness, transparency and data portability for operating systems

As third parties may face discriminatory access to operating system (OS) functionality or system resources, as well as limited browser functionality on an OS, CERRE makes four main suggestions to improve competition and choice:

1. Enabling side-loading of apps in dominant operating systems, such that consumers can install any lawful and safe app on their device.
2. More stringent user consent rules for pre-installed apps, to align them with the consent required for apps that are installed later, the same access privileges for both pre-installed and alternative apps, and the possibility to truly de-install pre-installed apps.
3. Transparency obligations on interfaces (APIs) for third-party (app developer) access to operating systems and minimum notice periods in case those interfaces are changed.
4. The right to data portability (as well as codes of conduct and common interfaces) for devices, so that consumers can switch from one device (operating system) to another as smoothly as possible.

“By intervening at the operating system and app discovery layer to ensure access to alternative content, the Commission can foster fairer competition in the internet access value chain without hindering innovation, investment and the European principles of consumer safety and security.” – Jan Krämer

The report was presented and debated on Tuesday 8 June, 14:00 CEST, during the CERRE public webinar “Device neutrality: regulating mobile devices”. The CERRE report and its recommendations can be read in full here.