In this blogpost, Priyanka Kansara, a law student from National Law University, Jodhpur writes on net neutrality and facebook’s free basics program.
“Internet never discriminate, everyone is important.”
Have you seen our Prime Minister’s profile picture on Facebook? So, it is his prerogative towards Digital India. Digital India is a campaign for creating more and more Internet connectivity for the citizens of India, especially in rural India. But Digital India is not the only phenomenon in the area of Cyber Revolution in India; we have the concept of Net Neutrality also, which should be taken care into. The concept of ‘Free Basics’ is in the debate, why? Because, it is alarmed that the new initiative of Facebook could have astringent impacts on the doctrine of net neutrality and the right to information in the country in the name of connectivity at a broader level.
The Concept of Net Neutrality in India
The concept of Net Neutrality is based on the principle that all the telecom stakeholders will treat all internet traffic on an equal pace. There must be a balanced approach between all the endpoints connected to the internet, without any arbitrary restriction. Further, the discriminative traffic management such as blocking, throttling should be prohibited. There should be no restriction on the part of Internet Service Providers to interfere in the internet users’ right to free access contents. In the arena of Net and accessibility the users’ rights to freedom to expression and freedom to access the information should be protected. Moreover, the objective of Net Neutrality is not confined only to the balanced approach towards the internet access; it is also meant by optimization and prioritization of time-sensitive traffic for better user experience and better data and money saving strategies. In prudent language, Net Neutrality is to make the online platform neutral for all the services provided by the Internet stakeholders. In the language of Public International Law, The internet is a common heritage of mankind and the limitation should be ensured so that everyone can legitimately access this heritage without any arbitrary intervention.
In India, the issue of Net Neutrality was raised several times i.e. in the case of Shreya Singhal vs. Union of India, Justice Nariman while declaring some censorship laws in the Information Technology Act passed by the Parliament unsustainable, had emphasized that liberty of thoughts and expression and right to access the information are the cardinal principles of the Constitution. Though, the Digital India campaign centres towards three important objectives i.e. digital infrastructure as a utility to every citizens, governance and services on demand, and digital empowerment of citizens, in April 2015 Prime Minister Modi’s initiative towards Digital India Campaign by shaking hands with the top Silicon Valley’s CEOs puts a question on the subsistence of the Net Neutrality principle in India.
What exactly Free Basics concept is?
Free Basics System, also known as Internet.org (it is the same service against which net neutrality supports including certain Indian organizations i.e. IT for Change, MediaNama, SavetheInternet.in etc. have been fighting for a year) is a Campaign launched by Facebook, the objective of which is to provide connectivity for 4.5 billion people including 1 billion Indians to the opportunities Online and to achieve digital equality in India. For this matter, Facebook needs a click from all the Internet stockholders as a support so that the campaign could be made a reality in India; merely by clicking on ‘Free’ we are sending a message to the Telecom Regulatory Authority of India (TRAI), which reads as- “To the Telecom Regulatory Authority of India, I support digital equality for India. Free Basics provides free access to essential internet services like communication, education, healthcare, employment, farming and more. It helps those who can’t afford to pay for data, or who need a little help getting started online. And it’s open to all people, developers and mobile operators. With one billion Indian people not yet connected, shutting down Free Basics would hurt our country’s most vulnerable people. I support Free Basics – and digital equality for India, Thank you“
Facebook’s initiative claims to provide free access to certain basic Internet services that are approved by Facebook and local ISPs; by doing the same, it is building a ‘walled garden’ for the targeted communities.
It is claimed that the Campaign will provide free access to basic internet services such as Education, Communication, Healthcare, Employment, Agricultural information and many other things. It is also claimed that besides there is a risk of disruption in the Net Neutrality in India, the Facebook is putting a misstatement before the consumers of providing access to full Internet while in reality it is providing access to some limited Internet services.
The Telecom Regulatory Authority of India has proposed a Consultation Paper, wherein a tariff framework was provided to the telecom service providers, which include Internet Service Providers and Data Service Providers (hereinafter referred to as TSPs) the freedom to design the tariffs according to the prevailing market conditions. The internet stakeholders are advised to send their suggestions till the end of the month of December. It should be remembered that the consultation paper issued by the regulatory authority raises concern because it offers zero- rating platform by TSPs in particular.
On the contrary, a campaign is being initiated by “savetheinternet.”in against the Facebook’s Free Basics concept, wherein a response will be submitted to the Chairperson of the Telecom Regulatory Authority of India to execute comprehensive network neutrality regulations, and it is emphasised that freedom of choice in information seeking is central to the value of the internet and contributes significantly to knowledge creation for citizens.
As per the Net Neutrality concept, every citizen has a right to access all the internet services without any prejudice, but the Free Basics concept will provide the internet accessibility to some limited extent, which means the user will not be the choosers, but it will be the Facebook, who will choose the selected Internet Service Providers (ISPs) for the users. Moreover, the campaign would be regulated by Facebook’s terms and conditions, and all the data would be under the possession of Facebook; it means Facebook would be having non-exclusive access to the data.
Having concurred with the opinion of the billionaire industrialist Sunil Mittal, it is advised that if the objective of the Facebook’s Free Basics concept is to provide free access to the internet services; to attain this it is necessary to open this project with the philanthropic intentions, the Government should make spectrum free, and there should be a free internet.
 Regulative Framework for Over-the-top (OTT) services/internet services and Net Neutrality: An abridged version of TRAI’s Consultation Paper (no. 2/2015), March 27, 2015, https://docs.google.com/document/d/1kNXtANR9UV6fSjV2DNrkcIMAJVVN4CJfHHiq_0kkx8E/preview#heading=h.4aduumx4pf3r (accessed on December 22, 2015).
 Net Neutrality in India: that’s what telcos said, Nikhil Pahwa, Medianama, November 12, 2014, http://www.medianama.com/2014/11/223-net-neutrality-telcos-india/ (accessed on December 22, 2015).
 (2013) 12 SCC 73; http://supremecourtofindia.nic.in/FileServer/2015-03-24_1427183283.pdf (accessed on December 22, 2015).
 Digital India at the expense of Net Neutrality?, The Statesman, October 08, 2015, http://www.thestatesman.com/news/section-ii/digital-india-at-the-expense-of-net-neutrality/95497.html (accessed on December 22, 2015); Digital India, Department of Electronics, and Information Technology, Government of India, http://deity.gov.in/sites/upload_files/dit/files/Digital%20India.pdf (accessed on December 22, 2015).
 Open letter to Mark Zuckerberg regarding Internet.org, Net Neutrality, Privacy & Security, May 18, 2015, https://www.facebook.com/notes/accessnoworg/open-letter-to-mark-zuckerberg-regarding-internetorg-net-neutrality-privacy-and-/935857379791271/ (accessed on December 22, 2015).
 A change of name to Free Basics doesn’t make Facebook’s Zero Rating service neutral, Nikhil Pahwa, MediaNama, September 25, 2015, http://www.medianama.com/2015/09/223-free-basics-internet-net-neutrality/ (accessed on December 22, 2015).
 Facebook is asking you to sign up for ‘Free Basics’, which is just another name for Internet.org, Adrija Bose, THE HUFFINGTON POST, December 17, 2015, http://www.huffingtonpost.in/2015/12/17/facebook-free-basics_n_8824378.html (accessed on December 22, 2015).
id; Facebook ripped for campaign backing free basics in India, David Cohen, Social Times, December 21, 2015, http://www.adweek.com/socialtimes/facebook-campaign-internet-org-free-basics-india/631806 (accessed on December 22, 2015).
 Supra Note 6.
 Supra Note 6.
 Facebook Launches ‘Save Free Basics’ Campaign in India, Sriram Sharma, Gadget 360: An NDTV venture, December 16, 2015, http://gadgets.ndtv.com/apps/news/facebook-launches-campaign-called-save-free-basics-778647 (accessed on December 22, 2015).
 Consultation Paper on Differential Pricing for Data Services, Telecom Regulatory Authority of India, Consultation Paper No. 8/2015, December 9, 2015, http://www.trai.gov.in/WriteReadData/WhatsNew/Documents/CP-Differential-Pricing-09122015.pdf (accessed on December 23, 2015).
 Facebook notifies users in India to save Free Basics, Express Computer, December 18, 2015, http://computer.financialexpress.com/news/facebook-notifies-users-in-india-to-save-free-basics/14995/ (accessed on December 23, 2015).
 Supra Note 8.
Supra Note 2.
 Sunil Mittal calls it right: what Zuck is doing with Internet.org isn’t philanthropy, Shashidhar KJ, MediaNama, March 9, 2015, http://www.medianama.com/2015/03/223-sunil-mittal-calls-it-right-what-zuck-is-doing-with-internet-org-isnt-philanthropy/ (accessed on December 23, 2015).