Net Neutrality
Module 5: Trends in Censorship by Private Actors
An overview of net neutrality
The principle of net neutrality is that internet service providers (ISPs) should treat all internet traffic equally, without imposing restrictions or preferential treatment based on factors like the source, destination, or type of data being transferred, or any profit motive. For example, an ISP cannot block, slow down or alter access to service A or make it faster and easier to access service B.(1) This aims to ensure that users have equal access to all online content and services. It means that ISPs must remain neutral and impartial when providing internet access.(2)
Net neutrality is now a well-established principle of contemporary human rights and international law.(3)
- A 2017 report of the UNSR, for example, found that: “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 provider.”(4)
- In 2021, a resolution of the Human Rights Council on the promotion and protection of human rights on the internet included a clarion call for states to ensure net neutrality, and to prohibit ISPs from giving preferential access to particular types of content or services for commercial gain.(5)
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. Net neutrality aims to promotes diversity, pluralism, and innovation, and to ensure that people can freely access information and impart ideas across the information society. 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.”(6)
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.(7) 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.(8)
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 pervasive. This will be outlined below.
Current challenges and debates
There are two common approaches that interfere with net neutrality:
- Blocking or throttling of content, either by state or non-state actors, may include entirely blocking or significantly slowing down access to specific websites, content, or platforms, or restricting access to content in specific geographic regions. This form of restriction contravenes 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.”
- Zero-rating involves the differential treatment of content by making certain content available with a zero-download cost.
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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.” The impact of zero-rating can depend on who implements it, the purpose of the zero-rating, how decisions are made about what content is zero-rated, and the nature of the content itself. In low-income contexts, it can be an effective way to provide widespread access to information in the public interest.
States have responded differently to debates about 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.
Certain developed states have shown a trend towards complete bans of zero-rating, perhaps as a reflection of better and more affordable connectivity. Canada, Norway, Slovenia, and the Netherlands are some of the states that have prohibited service providers from differentiating between tariffs for internet access services.(10)
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(11) and developing nations,(12) 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,(13) while in South Africa the government issued regulations requiring ISPs to zero-rate certain resources.(14)
While these measures were enacted as once-off exceptions in 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 in India in 2015 with two zero-rated options being offered to Indian users – Facebook’s ‘Internet.org’ and Bharti Airtel’s ‘Airtel Zero’. 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.(15) 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.(16)
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. While Meta argued that some access is better than no access, digital rights activists lobbied to introduce regulations to safeguard net neutrality. The process led to significant changes to safeguard net neutrality in India’s digital policy:
- 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.(17)
- In 2017, TRAI tabled further recommendations for net neutrality with the Department of Technology.(18)
- In 2018, the Indian Government pledged its commitment to the fundamental principles and concepts of net neutrality and was heralded for adopting the world’s strongest net neutrality norms.
However, in 2023 TRAI published a policy discussion paper(19) which invited public comment on the possibility of policy changes which would mark a shift away from net neutrality, including a framework for authorisation and network usage feeds for internet services, and a mechanism for ‘selective banning’ of such services. This drew widespread criticism from Indian civil society organisations and technical experts, who framed the policy discussion as a rollback of the government’s previous support for net neutrality.(20) The outcome of this policy process was still pending at the time of this publication.
The fight over net neutrality in the United States
The legislative and policy conflicts over net neutrality in the United States reflect larger ideological contests on the role of government and business between successive political administrations.
In 2015, following a Federal Court of Appeals ruling, the Federal Communications Commission (FCC) in the US 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.(21)
However, during the Trump presidency, the US government’s view on net neutrality changed. In 2017, under new leadership, the FCC voted to repeal the Open Internet Rules.(22) This decision was viewed as a negative step for many digital rights and free expression activists.(23) Net neutrality advocates challenged this decision, but in 2019 the DC Circuit Court ruled in favour of the FCC and upheld its repeal of the 2015 Rules.(24) In 2020, the DC Court of Appeals dismissed an appeal seeking to reverse the decision.(25)
However, the position was reversed again shortly after President Joe Biden assumed office in 2021 when Biden signed an Executive Order which urged the FCC to reinstate net neutrality rules.(26) In October 2023, the Federal Communications Commission (FCC) voted to proceed with a proposal to restore the net neutrality rules that were repealed during the Trump administration. At the time of publication, the FCC was set to begin public consultations on the proposal with a final decision expected in early 2024.(27)
However, given broader partisan divides in the US political system, it seems likely that the net neutrality debate will continue in the US.
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.”(28)
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.(29)
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:(30)
- 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.
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.”
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.
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.(31) 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. 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, sending complaints to regulators, strategic litigation, and public advocacy, in order to achieve the goal of equal opportunity in access.