This article is written by Abhishek Khandelwal, a student of Institute of Law, Nirma University.

Introduction

“The internet is a reflection of our society and that mirror is going to be reflecting what we see. If we do not like what we see in that mirror the problem is not to fix the mirror, we have to fix society.” – Vint Cerf

The debate over Net Neutrality is reverberating around the world and India with its third highest number of Internet users is no exception. In the present essay, an effort is being made to make a case for Net Neutrality in India by bringing together arguments in favour of Net Neutrality and tracing the recent developments in Net Neutrality debate which mainly stems from the tension between open innovation and monopolistic control.

What is Net Neutrality?

There is no standard definition of net neutrality. It is globally understood as a principle that  promotes equality within the developing Internet and thus prevents the Internet Service Providers (ISPs) from creating a preferred or tier-levelled system controlling the order and speed of different types information that is passed over the internet. Prof. Tim Wu, who coined the term ‘Net Neutrality’ defined it as a network design principle. The idea is that a  maximally useful public information network aspires to treat all contents, sites and platforms equally. This allows the network to carry every form of information and support every kind of application.  Certain common principles of net neutrality in different countries include no blocking, no throttling, no paid prioritisation, freedom of access and to receive or use content, no discriminatory practices, reasonable traffic management and support for innovation.

For Promoting Innovation and Ensuring the Fundamental Right of Speech & Expression

Net Neutrality includes the ability of end-users to access lawful internet-based content or applications of their choice and the ability of content and application providers to access end users ‘‘without permission’’ from network operators. Net Neutrality has resulted in profound benefits through innovation in content and applications across a wide range of economic and social activities. The companies like Facebook and Google were all new entrants at some point and it was the power of ideas supported by de facto net neutrality that helped them to establish themselves. So, it is desirable that new upcoming content providers and app developers are also provided with the same kind of environment that promoted innovation in the nascent phase of Internet. An open internet will undoubtedly act as a catalyst for innovation and growth.

Internet has emerged as a public space where people can freely speak their mind. It has become a vibrant platform for discussions and debates and offers equal digital space for expression irrespective of age, caste, creed, religion, wealth or gender. This characteristic of internet can be affected if telecom operators become ‘gatekeepers’ gaining control of the traffic channelized through their network.

If somebody’s expression is deliberately stopped by ISPs from reaching the target audience over Internet by employing traffic management techniques such as throttling or blocking for the purpose of giving preference to some other content, then it is a violation of the right to freedom of speech and expression which is a fundamental right guaranteed by the Constitution of India. So it is the duty of welfare state like ours to check and eradicate any possible threat to the continued existence of Internet as a free public space. However, legitimate traffic management practices may be allowed but these practices must not go against the core principles of Net Neutrality. According to the DoT Committee report on Net Neutrality, following criteria should be kept in mind by ISPs while indulging in traffic management practices :

1. Adequate disclosures to the users about their traffic management policies to maintain transparency and to allow users to make informed choices.

2.Unreasonable traffic management, which is exploitative or anti- competitive in nature.

3.For legitimate network management, application-agnostic control may be used.

4.Traffic management techniques like DPI should not be used for unlawful access to the type and contents of an application in an IP packet.

5.Improper Prioritization may not be permitted.

6. Mechanism to minimise frivolous complaints will be desirable.

Major Developments Since 1998 till 2016

Since 1998, when for the first time ISPs were allowed to start operations in India, there had been a de facto net neutrality in India. However, in December 2006, a consultation paper published by TRAI ( Telecom Regulatory Authority of India)  noted that this de facto net neutrality can be disturbed by ISPs in the future. TRAI consultation paper suggested that in the absence of Net Neutrality Regulations,  ISPs can discriminate against competing applications and content providers and so TRAI invited opinions from stakeholders that whether there should be regulatory provisions for Net Neutrality or whether it should be left at the option of market forces.

As expected, Net Neutrality faced a severe attack in India with the announcements from Reliance and Airtel concerning Internet.org and Airtel Zero respectively. These two platforms aimed at providing free internet. Now, one might argue that what is wrong if someone wants to offer free internet?  Free Internet is very tempting but one should be aware that you are only getting free access to services/apps which have struck a deal with telecom companies (telecos). Giant app developers and services having hefty capital will have no issues to pay telecos for data charges but this can leave small app developers, specially startups, who cannot afford Airtel or Reliance’s data rates at a definite disadvantage. All those people who supported Facebook’s Free Basics or Airtel Zero need to understand that they were actually opposing Net Neutrality by doing so.  Rahul Khullar, ex- TRAI chairman, also said that what Airtel or Facebook tried to do was against Net Neutrality. He further added that it was not illegal just because India had no law enforcing net neutrality.

In the wake of these attacks against net neutrality in India, the TRAI on 27^th March 2015 released a consultation paper on over-the-top-services (OTT) and net neutrality for public feedback. The last date for submission of comments was 24^th April, 2015 and TRAI received more than a million e-mails. After contemplating over the feedback received from various stakeholders, the TRAI on 8^th  February, 2016 barred telecom service providers from charging differential rates for data services, thus debarring Facebook’s Free Basics and Airtel Zero platform by Airtel. The TRAI’s much-awaited Prohibition of Discriminatory Tariffs for Data Services Regulations, 2016 stipulated that:

1. No service provider can offer or charge discriminatory tariffs for data services on the basis of content.
2. No service provider shall enter into any arrangement, agreement or contract, by whatever name called, with any person, natural or legal, that the effect of discriminatory tariffs for data services being offered or charged by the service provider for the purpose of evading the prohibition in this regulation.
3. Reduced tariff for accessing or providing emergency services, or at times of public emergency has been permitted.
4. Financial disincentives for contravention of the regulation have also been specified.
5. TRAI may review these regulations after a period of two years.

It should be noted that the TRAI can exercise its powers under section 36 of Telecom Regulatory Authority Of  India Act 1997 (24 of 1997) to impose this order. However, the aggrieved parties can go to a High Court under Article 227 of the Constitution of India and seek a quashing of the order.

Conclusion

 The publishing of ‘Prohibition of Discriminatory Tariffs for Data Services Regulations, 2016’ in ‘The Gazette of India’ was followed by a flurry of tweets and articles to welcome the TRAI’s new regulations on Net Neutrality. Undoubtedly, TRAI has taken a bold and much-needed decision. But it should be noted that the only focal point of these regulations is that ISPs can’t charge differently for data services based on content while there are many other techniques like throttling data speeds that can still go against the core principles of Net Neutrality. Issues such as OTT services is still in need of regulations. So, technically India still doesn’t have a law that enforces Net Neutrality as a whole.

Net Neutrality is a pre-requisite to ensure user rights on the Internet and to promote innovation in the oligopolistic market ecosystem of present times and it will determine how India’s economic and communications infrastructure will grow in the near future. So it is about time that Indian Government take a rational approach and initiate action in evolving an objective policy which conclusively determines all the aspects of Net Neutrality.

References

1. Net Neutrality DoT Committee Report, May, 2015.

        2. TRAI – The India Telecom Services Perfromance Indicators as of Sep 2014.

3. The Network Neutrality Debate and Development – www.diplomacyy.edu
4. http://webfoundation.org/2015/04/net-neutrality-india/

        5.Net Neutrality and Investment Incentives- Jay Pil Choiy Byung- Cheol Kimz

6. Telecom Regulatory Authority of India Act, 1997
7. Constitution of India
8. TRAI, Consultation Paper on Regulatory Framework for OTT Services, 27^th March 2015.
9. George S. Ford, A Most Egregious Act? The Impact on Consumers of Usage-Based Pricing, PHOENIX CENTRE, May (2012).
10. Richard Bennett, Comcast Raises Invisible Data Cap, THE INFORMATION TECHNOLOGY & INNOVATION FOUNDATION, May (2012)
11. Robert Hahn and Scott Wallsten, The Economics of NN
12. ‘The Innovation Enhancing Effects of Network Neutrality’, SEO Economic Research (2013) Available at: http://www.seo.nl/uploads/media/2013-33_The_innovation-enhancing_effects_of_network_neutrality.pdf

13. http://tech.firstpost.com/news-analysis/facebook-reliance-communications-launch-internet-org-in-india-heres-how-it-works-253948.html

14. http://www.thehindu.com/business/airtel-launches-platform-offering-free-access-to-certain-apps/article7077204.ece