Module 5: Trends in Censorship by Private Actors
An overview of net neutrality
The UNSR’s 2017 Report focused on the Information and communications technology (ICT) sector and explained that net neutrality requires that internet data is treated equally without undue interference.(1) In principle, net neutrality protections are designed to safeguard freedom of expression and access to information online by ensuring that such freedoms are not determined by market forces or curtailed by network providers.(2) Essentially, this means that internet service providers (ISPs) must remain neutral and impartial when providing internet access. In this regard, ISPs cannot alter competition, or unduly interfere with or diminish opportunities for content providers. Additionally, as explained by Center for Technology and Democracy in a report on the Importance of Internet Neutrality to Protecting Human Rights Online, service providers cannot discriminate against or manipulate internet traffic on the basis of source, destination, content or associated application. For example, an ISP cannot block, slow down or alter access to service A or make it faster and easier to access service B.
Net neutrality fulfils an important role in ensuring that people can freely access information and impart ideas across our information society. It promotes diversity, pluralism, and innovation. The Steering Committee on Media and Information Society of the Council of Europe, in its report on Protecting Human Rights through Network Neutrality, explained that net neutrality encourages internet users to freely elect how they use their internet connection. The Center for Technology and Democracy explains that:
“preserving internet neutrality means preserving the power of individuals to make choices about how they use the Internet – what information to seek, receive, and impart, from which sources, and through which services.”
Net neutrality, development and human rights
Given net neutrality’s role in the advancement of freedom of expression, it should be viewed through a human rights lens. Some have gone as far as suggesting that it is an emerging international human rights norm.[foonote]Id[/footnote] Ensuring network neutrality is seen as central to the protection of fundamental human rights and an enabler of fair competition and innovation, as it promotes freedom and enhances network access.(3) In the same 2017 Report, the UNSR noted:
“In the digital age, the freedom to choose among information sources is meaningful only when Internet content and applications of all kinds are transmitted without undue discrimination or interference by non-State actors, including providers. The State’s positive duty to promote freedom of expression argues strongly for network neutrality in order to promote the widest possible non-discriminatory access to information.”
Yet despite the demonstrable link between human rights and net neutrality and the clearly defined position of the UNSR, the past decade has seen growing threats to net neutrality. It has been the subject of regulatory debates and radical shifts in regulations across the world. Additionally, norms and standards have started to develop, and, equally, attempts by state and non-state actors to influence net neutrality and individuals’ freedom of expression online are on the rise. This will be outlined below.
Current challenges and debates
Presently there are two common methods of limiting net neutrality:
- The first entails the blocking or throttling of content, either by state or non-state actors. This may include entirely blocking or significantly slowing down access to specific websites, content, or platforms, or restricting access to content in specific geographic regions. It is largely acknowledged that this form of restriction is contrary to international human rights norms. The Net Neutrality Compendium explains that “blocking certain information resources or restricting what information Internet users can impart over their connection would have serious implications for the right to free expression. For example, blocking access to a particular lawful blog because its content is disfavoured by the access provider would raise obvious concerns.” The 2017 Report of the UNSR notes that “States’ use of blocking or filtering technologies is frequently in violation of their obligation to guarantee the right to freedom of expression.”
- The second is commonly referred to as zero-rating, which involves the differential treatment of content through the provision of certain preferred content with a zero-download cost.(4) This method is less drastic than blocking and throttling of content and is often framed in terms of public benefit. The 2017 Report of the UNSR describes zero-rating as “the practice of not charging for the use of internet data associated with a particular application or service; other services or applications, meanwhile, are subject to metered costs.” Zero-rating can have differential effects depending on who implements it and how decisions are made about which content to make freely accessible. In low-income contexts, it can be an effective way to provide widespread access to public good information.
States have responded differently to net neutrality and zero-rating, with some legislating strong protections for the former and others developing policies to promote zero-rating of certain content as a public service. Among certain developed states, there is an emergent trend toward complete bans of zero-rating. Canada, Norway, Slovenia, and the Netherlands are some of the states that have prohibited service providers from differentiating between tariffs for internet access services.(5)
Developed countries generally have widespread access to the internet, as well as affordable mobile data. Among developing countries, zero-rating is more likely to be viewed as a policy approach to address challenges such as limited internet access, high data prices and widespread digital divides. Notably, the global COVID-19 pandemic prompted a range of temporary zero-rating initiatives in both developed(6) and developing nations,(7) in which online education, health, and other resources were zero-rated. In many instances, ISPs voluntarily provided zero-rated access to certain resources, such as in Tanzania and Kenya,(8) while in South Africa the government issued regulations which mandated zero-rating of certain resources as a requirement.(9)
While these measures were enacted as once-off exceptions as a result of the unprecedented challenges of a global pandemic, in the long run, zero-rating could be seen to cause complications in relation to net neutrality. Access Now explains:
“Activists in advanced economies are struggling to communicate the importance of Net Neutrality for free expression, innovation, and competition, in some cases to audiences that are increasingly anti-regulation. Many in developing countries are facing down critics who argue that non-neutral internet access somehow functions as an “on-ramp” for the free and open internet.”
The following examples illustrate the complexity of this debate.
The fight for net neutrality in India
The net neutrality debate came to the fore with two zero-rated options being offered to Indian users in 2015 – Facebook’s ‘Internet.org’ and Bharti Airtel’s ‘Airtel Zero’. In February 2015, Facebook (now Meta) launched Internet.org with the stated intention of providing free basic internet services to people in India, but only to selected online content.(10) At around the same time, Airtel launched Airtel Zero, a platform for zero-rated services, offering access to a range of content. Content providers paid Airtel to be included in this service. By April 2015, Airtel was the largest mobile ISP in India with 226 million customers.(11)
That year, the Telecom Regulatory Authority of India (TRAI) called for public comment on its consultation paper on net neutrality. This sparked a national debate on the topic, with many individuals and civil society actors providing comments on the importance of net neutrality. This process led to the TRAI releasing recommendations on the prohibition of discriminatory data services, which essentially prohibited ISPs from offering or charging discriminatory tariffs for data services on the basis of content. It is worth mentioning that amid the upheaval around zero-rating, Meta’s founder Mark Zuckerberg stated in a video: “Some may argue for an extreme definition of net neutrality that says that it’s somehow wrong to offer any more services to support the unconnected, but a reasonable definition of net neutrality is more inclusive. Access equals opportunity. Net neutrality should not prevent access.”
Meta argued that some access is better than no access. This was not well received by digital rights activists, who lobbied to introduce regulations to safeguard net neutrality. Within two years, the net neutrality landscape underwent significant changes:
- In 2016, TRAI released regulations titled “Prohibition of discriminatory tariffs for data services” which, among other things, prohibited any service provider from offering or charging discriminatory tariffs for data services on the basis of content.
- In 2017, TRAI provided the Department of Technology with further recommendations regarding net neutrality.
- In 2018, the Indian Government pledged its commitment to the fundamental principles and concepts of net neutrality.
- In July 2018, India was heralded for adopted the world’s strongest net neutrality norms.
The fight regarding net neutrality in the United States
Legislative and policy developments in the United States provide a useful case study into the nuances of the net neutrality principle and illustrate how politics and economics are at a crossroads with human rights. The Harvard Business Review notes that “Despite being a simple idea, net neutrality has proven difficult to translate into US policy. It sits uncomfortably at the intersection of highly technical internet architecture and equally complex principles of administrative law.”
In 2015, following a DC Circuit Court of Appeals ruling, the Federal Communications Commission (FCC) in the U.S. enacted the historic Open Internet Rules, which prohibited internet providers from engaging with differential pricing for certain content or from giving preferential treatment to certain websites.(12) However, during the Trump presidency, the US government’s view on net neutrality changed.
In 2017, the FCC voted to repeal the Open Internet Rules.(13) This decision was viewed as a negative step for many digital rights and free expression activists. Access Now captured some of the responses by open internet advocates and rights organisations:
- “This order brazenly prioritizes the profits of internet middlemen over the health of the internet ecosystem and the freedom of internet users. We’re very disappointed to see this abdication by the U.S. of its leadership in internet governance” – Aravind Ravi-Sulekha, Internet Freedom Foundation (India).
- “Today the country with the largest share of the global internet economy has entered into a dangerous experiment. By abolishing the rules that protect the innovation of its startups and the free speech of its citizens, the benefits of mankind’s greatest invention — the internet – are put in jeopardy in exchange for short-term gains for a few telecoms companies. We hope this historic mistake will be corrected and eventually pave the way for real legislative protection of Net Neutrality in the United States.” — Thomas Lohninger, Executive Director, epicenter.works (Austria).
- “The internet must be free, open, and preserve the rights of all the users, without any kind of discrimination or repression or censorship of their rights. It was never intended as a tool to give power to IAPs or ISPs to be a ‘gatekeeper,’ privileging certain users or blocking others based on business or governmental interests. Let’s safeguard Net Neutrality!”— Houssem Kaabi, President, International Institute of Debate (Tunisia).
- “The ending of Net Neutrality in the U.S. could be the beginning of the end of the open, interoperable, free internet. It is now a question of how much, not if, freedom of expression online will be undermined around the world as a result of this short-sighted decision to enrich the entrenched near-monopolies who control internet access in the United States.” — Quinn McKew, Deputy Executive Director, ARTICLE 19 (United Kingdom).
In 2018, the FCC’s repeal of the net neutrality rules became official.(14) Net neutrality advocates challenged this decision, and, in 2019, the DC Circuit Court ruled in favour of the FCC and upheld its repeal of the 2015 Rules.(15) In February 2020, despite attempts by various stakeholders, the DC Court of Appeals dismissed an appeal to reverse the repeal of the net neutrality rules.(16)
However, the position was reversed again shortly after President Joe Biden assumed office in 2021 when Biden signed an Executive Order which included a call for the FCC to reinstate net neutrality rules.(17) It is likely that the net neutrality debate will continue in the US, illustrating the stark contrast between those in favour of net neutrality and the economic interests of those who seek to curb it.
Practically engaging with net neutrality
As illustrated above, state and non-state actors often seek to depart from the principles of net neutrality and materially change the conditions of people’s access to the internet, which impacts the right of freedom of expression and access to information. Overcoming the threats to net neutrality involves two key considerations: the need to ensure adequate safeguards that preserve net neutrality; and the need to understand what limitations are permissible in relation to net neutrality. According to the Net Neutrality Compendium:
“To an unprecedented degree, the Internet transcends national borders and reduces barriers to the free flow of information, enabling free expression, democratic participation, and the enjoyment of other rights … Establishing rules to preserve net neutrality – or more precisely, Internet neutrality – is one way to prevent the imposition, by those in a position to control access, of structural inequalities that would distort this environment.”(18)
As discussed above, states should preserve net neutrality in order to promote the widest possible non-discriminatory access to information. Calling on states to enact laws or regulations to protect net neutrality is an important step in holding states accountable and pushing them to fulfil their responsibilities of protecting freedom of expression.(19)
Tips for good net neutrality protections
The Net Neutrality Compendium provides five principles to guide the substantive development of net neutrality protections that will ensure that states fulfil their obligations in relation to free expression and other human rights online:(20)
- There should be a clear expectation that internet access services must be provided in a neutral manner, without discrimination based on the content, applications or services subscribers choose to access.
- The scope of the neutrality obligation should be clearly defined and should account for the crucial distinction between internet access services and specialised services.
- The neutrality obligation should apply equally to fixed and mobile internet access services.
- There should be clear guidelines for evaluating exceptions for reasonable network management practices.
- The neutrality obligation should not apply to over-the-top services available on the internet.
Minimum standards and safeguards for network neutrality regulatory instruments:
The Net Neutrality Compendium in its Policy Statement on Network Neutrality further suggests the following safeguards for Network Neutrality regulatory instruments:
- Principle of network neutrality: Network neutrality is the principle according to which internet traffic is treated without unreasonable discrimination, restriction or interference regardless of its sender, recipient, type or content.
- Reasonable traffic management: ISPs should act in accordance with the principle of network neutrality. Any deviation from this principle may be considered as reasonable traffic management as long as it is necessary and proportionate to:
- Preserve network security and integrity.
- Mitigate the effects of temporary and exceptional congestion, primarily by means of protocol-agnostic measures or, when these measures do not prove practicable, by means of protocol-specific measures.
- Prioritise emergency services in the case of unforeseeable circumstances or force majeure.
- Law enforcement: None of the foregoing should prevent ISPs from giving force to a court order or a legal provision in accordance with human rights norms and international law.
- Transparent traffic management: ISPs should publish meaningful and transparent information on characteristics and conditions of the internet access services they offer, the connection speeds that are to be provided, and their traffic management practices, notably with regard to how internet access services may be affected by simultaneous usage of other services provided by the ISP.
- Privacy: All players in the internet value chain, including governments, shall provide robust and meaningful privacy protections for individuals’ data in accordance with human rights norms and international law. In particular, any techniques to inspect or analyse internet traffic shall be in accordance with privacy and data protection obligations and subject to clear legal protections.
- Implementation: The competent national authorities should promote independent testing of internet traffic management practices, ensure the availability of internet access and evaluate the compatibility of internet access policies with the principle of network neutrality, as well as with the respect of human rights norms and international law. National authorities should publicly report their findings. Complaint procedures to address network neutrality violations should be available and violations should attract appropriate fines. All individuals and stakeholders should have the possibility to contribute to the detection, reporting and correction of violations of the principle of network neutrality.
While adequate legislative and regulatory provisions are the goal, it is, as with all rights, imperative to know what limitations are permissible. The 2011 Joint Declaration on Freedom of Expression and the Internet stated:
“Freedom of expression applies to the Internet, as it does to all means of communication. Restrictions on freedom of expression on the Internet are only acceptable if they comply with established international standards.”
Simply put, limitations to net neutrality should only be permitted when provided by law and where necessary and proportionate to the achievement of a legitimate aim.(21) This three-part test is rooted in article 19(3) of the International Covenant on Civil and Political Rights (ICCPR) and must be passed for the legitimate and legal restriction of the right to freedom of expression.
In a 2018 Report, the UNSR made the following notable statements regarding state and company liability that should be kept in mind when litigating issues around net neutrality:
- In relation to state responsibility: Human rights law imposes duties on states to ensure enabling environments for freedom of expression and to protect its exercise. The duty to ensure freedom of expression obligates states to promote, among other things, media diversity, independence, and access to information. Additionally, international and regional bodies have urged states to promote universal internet access. States also have a duty to ensure that private entities do not interfere with the freedoms of opinion and expression. The UN Guiding Principles on Business and Human Rights (Guiding Principles), adopted by the Human Rights Council in 2011, emphasise state duties to ensure environments that enable business respect for human rights.
- In relation to state responsibility: The Guiding Principles establish a framework according to which companies should, at a minimum, avoid causing or contributing to adverse human rights impacts, and seek to prevent or mitigate such impacts directly linked to their operations, products, or services by their business relationships, even if they have not contributed to those impacts.
Developing countries continue to face challenges in relation to net neutrality and the suggestion that some access is better than no access. While there is a need for a nuanced approach to zero-rating to enable access to public interest information, the international human rights framework is clear on the need to protect equal access, and states should not enable infringements on net neutrality to serve as justification for failing to take steps toward full and meaningful internet access for all. It is necessary for civil society actors and human rights litigators to ensure that net neutrality is protected through lobbying states, submitting complaints to regulators, strategic litigation, and public advocacy, in order to achieve the goal of equal opportunity in access.