In this article, Jimsi Tassar who is currently pursuing Diploma in Entrepreneurship Administration and Business Laws from NUJS, Kolkata, discusses Laws on Net Neutrality in India

Net Neutrality Laws refers to Laws and Regulations which enforce the Principle of Net Neutrality. So, what is Net Neutrality Principle? Do we have any Laws in India, to regulate access to data and information on the internet?

Internet is defined in Wikipedia, as a global Networking Computer providing a variety of Information, and communication facilities, consisting of interconnected networks using standardized communication protocols. It is a Network of Networks that consists Private, Public, Academic, Business, and Government Networks of Local to global Scope, linked by broad array of electronic, wireless, and Optical networking Technologies. The ‘Internet Epoch’, which began in our lifetime, initially started as a small networking program with computation called the Arpanet for the USA military and developed by funded Research for US Defence known by the name of Advanced Research Project Agency ( ARPA), which later changed to Defence Advanced Research Projects Agency ( DARPA), and later could actually be traced to the last decades of the 20^th century and over the last years, there have been numerous developments of Applications both in the form of Hardware and Software, to support such linkages set up and for easy access to such exchanges and information on the World Wide Web.

What ‘Neutrality’ means when we talk of Net Neutrality

Neutrality in this context means the easement of linkages, routes, and free access to any services or resources available on the internet provided by the third Party, and various other service providers, without any discrimination or hindrance from the Internet Service Provider or ISPS.

Net Neutrality is thus, a governing Principle for the Internet Service Providers. Net Neutrality of Internet Service Providers without preferential conduct towards certain Data, Websites and Programmes, domains etc, but being neutral, to have a free flowing internet service through its servers, and without having any authority or dictation over the Customer’s choice to have an access to any kind of information or service from any part of the world, either through Global Network or Local Network, available on the Internet.  The idea of Net Neutrality Principle is to have equal treatment of all data, without any preferential treatment of any data based on speed, inflow of data or access to the data.

Net Neutrality was coined as a terminology by Academician, Tim Wu, who stated that it was best defined as a network design principle. The idea is that a maximally useful public information network aspires to treat all content, sites and platforms equally. Most jurisdictions, including those that are said to have adopted a NN framework; however, do not explicitly define this term in their policy/regulatory framework.

In fact, the idea and the concept of Net Neutrality is a very recent phenomenon wherein, the whole communication processes that actually happened through Calls and Text Messages, Voice and Video calls, provided by the Telecom Companies worldwide, were extensively replaced by various internet services like Skype, Google Chat, Facebook, Twitter etc, due to invention of smart phones, these services became accessible. The Internet services have been possible with the Broadband Services that is a Service provided by the Telecom Companies. The governing principle of telecom companies for Tele services since its inception, has been very liberal without any control of the telecom providers on who a person makes a telephonic conversation or to whom a person sends a text messages and from where a person calls and for what reason or anything as such which is of no concern to the Service Providers of Telecom Services.

Also, the fact exist that, telecom companies and Tele communication service providers are only focussed on the tariffs and rates of the Service provided without controlling the traffic of calls or restricting the callers to communicate. Thus, this principle has been existing and forwarded to Broad band services too. With the advent of such internet voice and video calling services, the telecom Companies to recover the revenues from the loss from such Internet programmes and services, had taken up the steps to charge those services from such websites and domain services, and also make certain charges or profitable relationship based on partiality and Preferential grounds rather than being neutral to all the service providers, thus eventually, the Consumer bear the brunt of charged services if it is so, along with the internet service charges, which would be double charges or could also mean paying for the internet service as well as charges for accessing to the Website or domain service. Thus, this fact, and circumstances resounded a fast cry all over the USA, and Europe and also India.

The topic of Net Neutrality was largely debated on various Grounds world over, and with the involvement of three parties to the idea of Net neutrality

1. The Consumers of Internet Service: who gain access to various information from the broadband Internet Services by paying the Internet Service Providers (ISPS) i.e Telecom Companies for the service, like the BSNL, Airtel and many other ISPS in India.
2. The Internet Service Providers- Telecom companies: The service providers that has introduced Broad band services along with telecom services, and would like to charge service payment for the internet Provider services to the Domain and Website providing free calling and services to the Internet users.
3. The Website and Application Providers: The Website could include any kind of services available on the internet like Social Media; Facebook, Twitter, Google Chat etc; E-Commerce and Marketing like Amazon, Flipkart, Snapdeal, Alibaba.com etc. The interest of the Service provider would be to protect itself from the effect of preferential spaces given by the Internet Service Providers, and especially the interests of the smaller investors and service providers who would want to protect their interests as against bigger service providers of bigger applications with global presence like Google, Wikipedia etc.

The Idea and concept of Net Neutrality thus have significance in the fields of Information Technology and the Rights of the “Netizens” to have the freedom of accessibility of the information as well to have the liberty of selecting the network or services to gain information and not being directed to access to information as per service selected not on the basis of liberty to choose, but due to the preferences and choices made by the Internet Service providers or the Telecom Services which could be possibly a very biased selective due to various reasons other than merit or preferences of the Customers, or any other reason which curtails the freedom and liberty of accessibility to Information available in the Public domain.

It has been found that, Internet is being used wide across USA, China, Europe and India.  So far, USA has been the country with the biggest online debate on the Net Neutrality with almost 3.7 million people participating on an online survey and discussion on Net Neutrality which is also adapted as ‘Open Internet Order’. However, there still has not been any landmark legislation on the same.

NET Neutrality Laws and Rules have been so far legislated in four countries

Chile

Chile is the first country to make Net Neutrality Provisions in its General Telecommunications Law in 2010. The opponents have shown discern on the blanket application of the Net Neutrality.

Netherlands

Netherlands is the second country to adopt Net Neutrality, in 2011. It bans Mobile Telephone operators from blocking or charging consumers extra for using communication services that are internet based, and therefore, the telephone operators raised charges overall to compensate for the revenue lost on the process.

Brazil

Brazil adopted a Net Neutrality Legislation on April 22, 2014 that bars the telecom companies from charging high rates to access the content requiring higher bandwidth, such as video streaming etc. Also, the Legislation puts a limitation on collecting of Meta data, and also holds the large Telecom Companies accountable for the security of Brazilian’s data, no matter where it is stored.  The law has dubbed Brazil’s legislation as Brazil’s, ‘Internet Constitution’. This remarkable legislation has been lauded globally, and makes global social network like Face-book and Google for subjected to Brazil’s laws and courts, therefore, it establishes that Service Providers are accountable for content published by Users, and must comply with Court orders to remove libel or offensive materials posted on their site or on the net.  Tim Burners Lee has lauded Brazil’s Internet constitution to be a balancing act between the freedom of internet and its decentralization, while balancing the rights and duties of Corporations, Government and the user of the internet.

The first big global debate started on Net Neutrality in USA when a service provider called the Verizon sought to ask extra charges on Netflix for streaming its movies. In USA, the Internet Service Providers (ISPS) are controlled by the Federal Communications Commission (FCC).  The FCC in USA had tried to control the Net neutrality by shutting down few services by the name of Comcast. However, in the year 2010, the US Court overrode such action of the FCC and issued certain rules as guidelines, very strictly there was no discrimination to be made between lawful Applications and Websites, and also, that there should be no charges taken up for such service/ application or website for generating revenue, even if such websites or applications are competing with the voice or video calling applications of the Telephonic Communications.

Opposition to Net Neutrality laws

There has been an alternate voice to Net Neutrality, wherein those opinionated against Net Neutrality Enforcement claim Regulation or Rules are unnecessary, as it is, that broadband services around the world, would never block content or degrade network performances as it would effects its own commercial benefits.

Also, it is consistently argued that, instead of any imposed discrimination by      the Broad band providers, the best solution is to encourage greater competition among such providers as it will increase the quality and also, increase its area of coverage, as it is currently limited in many areas. Therefore, the alternate view of those opposing any regulation or laws are based on sound understanding of world wide scope of Internet Service Providers with the ever increasing usage of net.

Net Neutrality in India

In India, there is no Legislation in place as such for Net Neutrality. There are no statutes or Legislations or Acts passed by the Parliament on Internet Service Providers and its authority over Freedom and liberty of the consumers. However, due to private players in the sector of telecom, there has been a need for independent regulations. Thus the Telecom Regulatory Authority of India was established with effect from 20th February 1997 by an Act of Parliament, called the Telecom Regulatory Authority of India Act, 1997, to regulate telecom services, including fixation/revision of tariffs for telecom services which were earlier vested in the Central Government. The main objective of TRAI is to provide a fair and transparent policy environment which promotes a level playing field and facilitates fair competition

In India, the first Public Debate on Net Neutrality started with Face-book and Skype going to be charged with certain service charges by the ISPS. There was widespread public debate online and with academicians etc.

In the consultation paper for possible regulations, TRAI recognised that while there are several definitions of Net Neutrality, the term is generally understood to mean the principle that Telecom Service Providers (TSPs) must treat all Internet traffic on an equal basis, without regard to the type, origin, or destination of the content or the means of its transmission. In recognition of the complex set of issues surrounding this concept and the diverse viewpoints on the subject, the Authority initiated a deeper enquiry into the various issues relevant to the subject.

As per TRAI reports, India has peaked more than 1 billion mobile phone subscribers, right after China. The newspaper reported that the Communication and Information Technology Minister Ravi Shankar Prasad comment, “It is a matter of great pride for us. It shows an empowered India and an engaged India and a tech-savvy India, it will mean more data, more government-to-government connectivity, more broadband.”- reports the Hindu.

Thereafter, following the first consultation, on February 2016, Telephone Regulatory Authority of India (TRAI) published a Regulation titled, the ‘Prohibition of Discriminatory Tariffs for Data Services Regulation, 2016, whereby different pricing rate for different services or for a certain type of services were allowed.

 Besides, the Regulatory and Facebook loggerheads, for Facebook to have attempted to divert from the idea of Net Neutrality Policy by bringing up social media debate on this announcement of free internet service in rural India.

Thus, TRAI brought in further Consultation for the engagement of public and authorities with expertise to bring forth policies on Net Neutrality and way forward in the context of India.

However, TRAI has so far been able to address the issue with two consultations and public consultation papers.

The TRAI consultation paper is on Public domain, and frameworks within which the Net Neutrality could be taken up as future course are the Regulatory Authorities: Telecom Regulatory Authority of India has been allocated the authority to regulate Licensing and all aspects of Regulation. The Telecom Regulatory Authority of India Act, 1997 (TRAI Act) confers direct responsibilities on the Authority on some aspects such as determination of tariffs and quality of services, while on others it has only recommendatory powers and the Licensing.

The Licensing for Regulatory structure

In India, issues of licensing and allocation of spectrum are dealt with by DoT while regulatory aspects are dealt with by TRAI. Moreover, the Telecom Regulatory Authority of India Act, 1997 (TRAI Act) confers direct responsibilities on the Authority on some aspects such as determination of tariffs and quality of services, while on others it has only recommendatory powers.  And the Licensing regime in India is divided into many licence service areas, and the boundaries of these areas may vary for different types of license. Therefore, within the boundaries of India, an end user may use data services while roaming across the Boundaries. Thus, Data services accountability could be a concern for policy makers.

Traffic Management Policies

Transparency of the Traffic Management Policies: Transparency is one of the main important aspects to be included in the Net Neutrality Regulatory Framework for they acknowledge that transparency obligations do impose both direct and indirect constraints on the ability of TSPs to engage in discriminatory conduct. Besides, the Quality of Service (QOS) requires to be maintained for the end consumers and the competition of the Internet Service Providers in the Market and most importantly, Transparency in information for the informed consent and informed choice of Service end user.

TRAI in its Consultation Paper has managed to address this concern of the disclosure procedures to be ascertained that would be provided by the Telecom Service to the Consumers for their informed choice. Disclosures to be provided to the Regulator of Internet Service and Information, Disclosure to be provided to the General Public.

In India, so far TRAI being the Regulatory Authority as mentioned in the Press Information Bureau Report, The Authority has therefore mandated the following in the Regulations:

1. No service provider shall 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 has 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 at times of public emergency has been permitted.
4. Financial disincentives for contravention of the regulation have also been specified.

TRAI would impose a fine of Rs. 50,000 per day, subject to maximum amount of Rs. 50 lakhs, for any violation of these Regulations, by the Internet service providers. An exemption, however, has been made for offering emergency services to the consumers.

TRAI rolled out a 2^nd Consultation Paper on Net neutrality for public Consultation which is to be rolled back by the end of this February 2017.

Conclusion

Net Neutrality Laws and Regulation would be the most forth coming in the near future, with policy makers logging head on bringing forth Policies and regulations around it for balancing the interests of all the stakeholders along with the interest of the Governance and legal implications on any legal issues which relates to data security and storage in locations beyond the territorial jurisdiction of any Country.