Regulation (EU) 2015/2120 of the European Parliament and of the Council laying down measures in relation to access to an open Internet and amending Directive 2002/22/EC and Regulation 531/2012 (hereinafter TSM Regulation), guarantees end users a series of rights in relation to the Internet access service. This regulation entered into force on April 30, 2016. Its article 1 states that the aim of the standard is “to safeguard an equitable and non-discriminatory treatment of traffic in the provision of internet access services and related rights of end users”.
In the same sense, article 76 of Law 11/2022, of June 28, General of Telecommunications, recognizes the right of users to open access to the Internet.
The rights granted to users, which must be taken into account by Internet access service providers (ISPs), are divided into two:
- Those related to the guarantee of the right of the end users to “access the information and contents, as well as to distribute them, use and supply applications and services and use the terminal equipment of their choice, regardless of the location of the end user or the provider or the location, origin or destination of the information, content, application or service, through its internet access service.”
- The rights of transparency implied by the ability of users to access information on certain aspects related to the principle of “Net Neutrality” (either published or incorporated into contracts between ISPs and end users).
In addition, as a guarantee of the supervision, control and sanction of these obligations, both rules recognize to the corresponding bodies the necessary powers to oblige them to comply with them. Likewise, it is mandatory for users to have mechanisms for resolving disputes in the matters subject to regulation, both before the operator itself and before instances outside it.
Article 76.9 of Law 11/2022, of June 28, General of Telecommunications establishes that the Ministry of Economic Affairs and Digital Transformation will supervise the application of the provisions of this article and will publish an annual report on said supervision and its results and send it to the National Commission of Markets and Competition, the European Commission and BEREC.