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    Net Neutrality

    Module 5: Trends in Censorship by Private Actors

    An overview of net neutrality

    In the 2017 Report that focused on the Information and communications technology (ICT) sector, the UNSR 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, and 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 the current digital climate and is important for 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 Council of Europe in its report on Protecting Human Rights through Network Neutrality: Furthering Interest Users’ Interests, Modernising Human Rights and Safeguarding the Open Internet explained that net neutrality encourages internet users to freely elect how they utilise 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

    From a human rights perspective, net neutrality is undeniably a tool for the advancement of freedom of expression, and, accordingly, 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.(3) Ensuring network neutrality is seen as central to the protection of fundamental human rights and an enabler to fair competition and innovation, as it promotes freedom and enhances network access.(4) 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 shown there to be 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 individual’s 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.  It is largely acknowledged that this form of restriction is contrary to international human rights norms.  This can be done by both state and non-state actors.  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, which appears to be less drastic than blocking, involves the differential treatment of content through the exclusion of preferred content, by ensuring that other content has a zero-download cost.(5) This is more commonly referred to as zero-rating. 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.” States have responded differently to net neutrality and zero-rating, with some legislating strong protections for the former. Among the key issues of the debate regarding net neutrality and zero-rating is the digital divide between developed and developing nations.

    There is an emergent trend that developed states are more likely to ban zero-rating completely. Canada, Norway, Slovenia and the Netherlands are some of the states that have prohibited service providers from differentiating between tariffs for internet access services.(6) Developed countries generally have widespread access to the internet, as well as affordable mobile data. On the other hand, developing and emerging countries are faced with different challenges, including limited access, high data prices and widespread digital divides, causing some 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 launched Internet.org with the stated intention of providing free basic internet services to people in India, but only to selected online content.(7) 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.(8)

    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 amidst the upheaval around zero-rating, Mark Zuckerberg, the founder of Facebook, 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.”

    Facebook argued that some access is better than no access.  This was not well received by digital rights activities, who lobbied to introduce regulations safeguarding 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 U.S. 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, in an article on the Tangled Web of Net Neutrality and Regulation, notes that “Despite being a simple idea, net neutrality has proven difficult to translate into U.S. 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.(9) Under the new administration, the view on net neutrality changed.

    In 2017, the FCC voted to repeal the Open Internet Rules.(10) 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.(11) 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.(12) 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.(13)

    It is likely that the net neutrality debate will continue in the U.S., 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 ways to depart from the principles of net neutrality and influence people’s freedom of expression online.  In order to practically overcome the threats to net neutrality, there are two key considerations: first, the need to ensure adequate safeguards that preserve net neutrality; and second, the need to understand what limitations in relation to net neutrality are permissible.  According to McDiarmid and Shears in 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.”(14)

    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.(15)

    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:(16)

    • 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.(17) 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.

    Conclusion

    Developing countries continue to face challenges in relation to net neutrality and the suggestion that some access is better than no access.  But the international human rights framework is clear, and 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. The goal is equal opportunity in access.

    Footnotes

    1. See further Media Defence ‘Training Manual on Digital Rights and Freedom of Expression Online Litigating digital rights and online freedom of expression in East, West and Southern Africaat 24 (accessible at https://www.mediadefence.org/resources/mldi-training-manual-digital-rights-and-freedom-expression-online). Back
    2. Carrillo, ‘Having Your Cake and Eating It Too? Zero-Rating, Net Neutrality, and International Law’ (2016) 19 Stanford Technology Law Review 364 at 367 (accessible at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2746447). Back
    3. Id. Back
    4. Audibert and Murray, ‘A Principled Approach to Network Neutrality’ (2016) LSE Research Online at 120 (accessible at http://eprints.lse.ac.uk/67362/7/Murray_Principled%20approach_2016.pdf). Back
    5. Marsden ‘Zero Rating and Mobile Net Neutrality’ Belli and De Filippi (ed) Net Neutrality Compendium Human Rights, Free Competition and the Future of the Internet (Springer, 2016) (“Net Neutrality Compendium”) at 241. Back
    6. Marsden in Net Neutrality Compendium at 248. Back
    7. Carrillo above n 3 at 367.   See further Chaudhry, ‘Spotlight on India’s Internet: Facebook’s Free Basics or Basic Failure’ University of Washington Henry M. Jackson School of International Studies (2016) (accessible at https://jsis.washington.edu/news/spotlight-indias-internet-facebooks-free-basics-basic-failure/). Back
    8. Marsden in Net Neutrality Compendium at 251. Back
    9. See Pouzin, ‘Net Neutrality and Quality of Service’ in Net Neutrality Compendium above n 12 at 78.  See further Access Now ‘Net Neutrality matters for human rights across the globe’ (2017) (accessible at https://www.accessnow.org/net-neutrality-matters-human-rights-across-globe/). Back
    10. See Washington Post, ‘The FCC just voted to repeal its net neutrality rules, in a sweeping act of deregulation’ (2017) (accessible at https://www.washingtonpost.com/news/the-switch/wp/2017/12/14/the-fcc-is-expected-to-repeal-its-net-neutrality-rules-today-in-a-sweeping-act-of-deregulation/).  See further Electronic Frontier Foundation ‘Team Internet Is Far From Done: What’s Next For Net Neutrality and How You Can Help’ (2017) (accessible at https://www.eff.org/deeplinks/2017/12/team-internet-far-done-whats-next-net-neutrality-and-how-you-can-help). Back
    11. New York Times, ‘Net Neutrality Has Officially Been Repealed. Here’s How That Could Affect You’ (2018) (accessible at https://www.nytimes.com/2018/06/11/technology/net-neutrality-repeal.html). Back
    12. Washington Post, ‘Appeals Court Ruling Upholds FCC’s Cancelling of Net Neutrality Rules’ (2019) (accessible at https://www.washingtonpost.com/technology/2019/10/01/appeals-court-upholds-trump-administrations-cancelling-net-neutrality-rules/). Back
    13. Endgated, ‘US Appeals Court Will Not Rule on Repealing Net Neutrality Laws’ (2020) (accessible at https://www.engadget.com/2020/02/07/net-neutrality-us-appeals-court/). Back
    14. McDiarmid and Shears, ‘The Importance of Internet Neutrality to Protecting Human Rights Online’ in Net Neutrality Compendium at 31-32. Back
    15. Id at 38. Back
    16. Id 38-41. Back
    17. For a detailed outline of the limitation of freedom of expression see Module 2 on Restricting Access and Content at 4 – 5.  See also Belli, ‘End-to-End, Net Neutrality and Human Rights’ in Net Neutrality Compendium at 12. Back