The topic is very much attached with the technological field, where a legal frame work governing the same is in question. Prior touching the question of need of legal frame work respecting Net Neutrality, the actual meaning of the term Net Neutrality is important to know. The principle of Net Neutrality stands for equal treatment to all the Internet traffic by the Telecom operators. There are certain issues which are necessary to satisfy for ensuring flourishing and neutral Internet, including keeping Internet open and neutral i.e. unrestricted approaching to all endpoints connected to the Internet should be maintained; equitable treatment to all data traffic irrespective of its sender, recipient, type, or content by prohibiting the every forms of discriminatory traffic management including blocking or throttling; freedom to access on internet, which user thereof enjoys, should be protected against interference of network service providers; for controlling traffic, the use of packet inspection software must be restricted; accessibility and availability to the public of every information about reasonable traffic management practices and justifications thereof, must be maintained, i.e. transparency and accountability must be there on the part of Telecom operators for bringing changes in practices; and finally, in the absence of any legal frame work, the non-neutral treatment of traffic must be prohibited for voluntary law enforcement purposes.
The internet being an innovation of global importance as everyone can seen from the fact that a big part of global population is using it, through different gadgets such as computer, smart phones, etc. for accessing knowledge and also for enjoying the freedom of speech and expression and the same is sought to be protected by the principle of Net Neutrality which is being an idea allowing all customers on equal basis to access all lawful websites and internet services without giving priority to any particular website over another. The idea of Net Neutrality principle is very clear as one can see it attaining the objects of policy of Indian Constitution, including fundamental rights and fundamental freedoms, but on the other side of the coin, it is important to note that, till today, there is no legal frame work existing in India governing the principle of Net Neutrality.
The United State’s Federal Communications Commission- FCC has recently adopted strong rules of Net Neutrality for preventing cable and phone companies from creating fast and slow lanes on the Internet. However, policy makers from some parts of the Worlds, particularly Indian policy makers are having very opposite approaches as they are considering the rules being very different to that of Net Neutrality.
However, in India the issue of need of Net Neutrality was raised by December, 2014 when the leading mobile telephone service providers namely, Airtel has announced to charge additional call rates from its network using applications such as WhatsApp, Skype, etc. On March 27th, 2015, Telecom Regulatory Authority of India- TRAI has released a consultation paper on over-the-top services- OTT, on the issue of net neutrality and requires public feedback. However, In the month of April, 2015 itself the Airtel has announced the ‘Airtel Zero’ scheme, whereunder, it sought to provide the access of some apps, which are partnered with Airtel, for free to its customers. And this ideal of Airtel is again violates the principle of Net Neutrality. Similarly, in India the Reliance-Facebook deal for Internet.org wherein an idea of Facebook’s with Internet.org for providing free of cost Internet access to areas of the world where such facilities might not be available and to that portion of population who cannot afford such facilities, is also in violation of Net Neutrality. The free WhatsApp packs by Reliance as was announced in the year 2012 is too violates Net Neutrality. Also announcement of free access of Wikipedia through phones which was made by Aircel in the year 2013 and in the same year, Reliance’s offer to unlimited Twitter access for free of cost are also stand against the principle of Net Neutrality.
Need for Legal Frame Work: So far as the legal perspective in relation to said Internet Neutrality is concerned, there are different practices in different areas. In the United States the issue of need of law on Net Neutrality had been in controversies since the 1990s. There were five attempts made by from the year 2005 to 2012 for passing the bills relating thereto. People supporting principle were contending about the ability of broadband providers to use their last mile infrastructure for blocking Internet applications and content, and even for blocking out competitors. Simultaneously, the people opposing the principle claimed that the concerned laws if enacted then the same would be deter investment into improving broadband infrastructure and try to fix something that isn’t broken. However, the United States’ Federal Communication Commission- FCC ruled in favour of principle, on 26th day of February, 2015, by re- classifying broadband access as a telecommunications service on the recommendations from Mr. President, Obama and as such applying Title-II (common carrier) of the Communications Act of 1934 to the Internet Service providers. And the final rule was published on 13th day of April 2015 by FCC on its new regulations.
Similarly, in European Union, the regulatory framework of the year 2002, for electronic communications networks and services in the European Union consisted of five directives, including Access Directive, Authorization Directives, Framework Directive, Universal Directive and Directive on privacy and electronic communications. However, in the month of November, 2007 while having consultation by the European Commission for updating aforesaid directives, it was observed the possible need for legislation to mandate network neutrality. And as the result thereof, the Commission proposed to empower imposing of a minimum quality of services requirements. And thus, on December 19th, 2009, the ‘Telecoms Package’ brought into force.
Also, there are several countries which in their individual capacity introduced the legal frame work for their domestic territories. Taking one by one, in Italy, since from the month of March, 2009 there was a bill in respect of network neutrality dealing with refusals of all the discrimination relating to the content, the service and the device and in generality the bill is about Internet, network neutrality, free software, giving an Internet access to everyone, etc. Likewise, in Dutch in the year 2011, the majority of its lower house voted to have new law on the subject of Net Neutrality, which is to prohibit blocking of services of Internet, usages of deep packet inspection for tracking customers behavior, etc. Also, at Belgium, the principle was put for discussion in the Parliament in the month of June, 2011. Similarly, other Countries like France, Slovenia, Israel, etc. are dealing with the issue of having laws on the principle of Net Neutrality.
However, in India as aforesaid no particular legal frame work exists on the issue of Net neutrality. Though, there are guidelines of Telecom Regulatory Authority of India- TRAI, for the Unified Access Service license promoting the principle of Net Neutrality, but the same are not in force. Even the provisions of the Information Technology Act, 2000 provides for nothing to prohibit the companies from throttling their service in accordance with their business interests.
A voice for having legal regulations on the principle of Net Neutrality is being raised from the recent past period and as such in India, the TRAI being India’s telecommunications regulatory Authority published the consultation papers as afore discussed for inviting comments on the issue of need of provisions on the principle. There are lakhs of e-mails and online petitions which have been sent to the TRAI and Union Ministry for Communication and Information Technology, requiring them to act against the violations of principle.
Recently, an internal aggression can be seen after the TRAI has published the aforesaid papers. For deciding the future of Internet in India, a battle which is being fought online against the operators. The demand for free and fair internet access is being made within a week from the date of publication by making online communications, which are around 8 lakhs in number. The Net Neutrality demanding activists have also developed promotional websites like netneutrality.in, savetheinternet.in where articles, and other publications are being made for grabbing attention from various sectors of people. For concluding the topic one can say that the need for legal frame work for Net Neutrality is being arose looking to the growing demands of Internet Services in India.
by Faim Khalilkhan Pathan.