By Rashmi Singh, ILS Law College, Pune.

‘Net Neutrality’ is the word of the hour. There has been a lot of debate on the said topic in recent times. It has probably been so much in the news that one might believe that India has had internet since at least from its independence. Online campaigns, petitions, letters, emails, etc. have been sent by numerous individuals or entities to the Government of India requesting them to allow internet to be free and accessible for everyone so as to prevent discrimination in relation to things available in the public domain.

For the ignorant, net neutrality is a principle which states that Internet Service Providers (ISP’s) should enable access to all content and applications available on the internet to everyone accessing it, regardless of the source and without favouring or blocking particular websites or products.

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The uproar over the internet was created when Airtel announced its plan to introduce ‘Airtel Zero’ and also proposed to impose separate charges for applications such as Whatsapp, Skype, Viber, etc. Facebook’s initiative of Internet.org was also criticized as one had to specifically be associated with Reliance network for utilising the said facility.

The argument that was mainly made against these services was that if the same is allowed then it shall give a lot of power to the Internet Service Providers (ISPs). They shall be in a position to control the entry or exit of players on the domain. The effects of the same may be catastrophic. The ISP may take undue advantage of the power given to it and may place only such information as it has been paid for, on the internet. It may give preference to only such companies which have aligned towards it. In the end, it was contended that the consumer may be exploited on account of misinformation or lack of choice. The argument from the other side was that they had no such intentions and on the contrary, they wanted the internet to be available to the masses at a very low cost. As per the ISPs, they were acting with bonafide intentions for the fulfilment of the aim of a welfare state. Their stance was that ‘Some internet is better than no internet’ and it is better for a person to have the opportunity to access some information instead of not having that choice at all. Facebook had launched its ambitious project ‘Internet.org’ in many African countries and was implementing it successfully there.

Another front which was presented by the ISPs was that since they were the ones who spent huge sums of money to develop the infrastructure to provide internet services, it should be them who should be allowed to take benefit of the same. They stated that they were suffering huge losses as users were using applications such as Skype and Whatsapp to make calls and chat, locally. They argued that these applications should not be allowed to reap fruits of their labour and these were causing a huge dent in their revenue.

As is apparent, the arguments put forth by the ISPs were weak and did not have any substantial basis. Further, there was no report or survey to support their arguments. One fact that has to be considered is that, with the advent of smartphones in the market, the usage of internet has increased exponentially and hence, the claim that the companies are suffering huge losses cannot be sustained. Airtel Zero was damned almost immediately and the situation went so hay-wire that the company’s brains had to write an open letter stating its intentions. It was also reported that Flipkart was all set to be a part of the said scheme, but facing tremendous backlash from the users, it did a volte face and abandoned its plans.

The users were not at all convinced with the defences presented by the companies and there was mass protest against the same. In the midst of all of this, the Telecom Regulatory Authority of India (TRAI) released a consultation paper which had many contentious points and the same was said to be implemented. The objective of the paper was to analyse the implications of the growth of Internet services, applications, Over The Top services (OTT’s). The same was condemned nationally.

After a huge hue and cry over this, the consultations were put to hold and a committee was set up by the Government which was to submit its report to the Department of Telecommunications on the same, which it did very recently under the chairmanship of Mr.  A.K. Bhargava. It had also asked the members of the civil society as well as the public at large for suggestions to the same.  The report upheld the principles of net neutrality but also allowed zero-rating programs such as Airtel Zero to be implemented subject to certain restrictions as may be imposed from time to time. The report further stated that the pricing arbitrage of OTT domestic voice communication services have the potential of significantly disrupting the existing telecom revenue model and the same way decelerate the pace of telecom infrastructure expansion. It recognises that the key public policy imperative is to manage the transition from voice-centric to data centric networks with the concomitant change in technology. The committee has recommended that legitimate traffic management practices may be allowed but should be tested against the core principles of net neutrality. Clauses requiring the licensee to adhere to the fundamentals of net neutrality have to be incorporated in the license conditions. It also stated that measures to ensure compliance of security related requirements of OTT service providers may be worked out through inter-ministerial consultations.

The report is a double edged sword. On one hand it allows or upholds the essentials of net neutrality, but on the other, it makes an exception such that traffic management may be done subject to certain restrictions. This in itself is a contradiction as net neutrality and traffic management cannot go hand in hand. One may also say that it insinuates that the ISPs have developed the infrastructure and it is the need of the hour for them to continue the same. For this, they should be provided with adequate consideration which may be achieved by compromising on the principles. The report, however, has been applauded by the United States of America.

In conclusion, it has to be said that while the efforts made by the Government have to be lauded for their commitment for a free internet world, any restriction, even regulated, on the same cannot be allowed for the simple reason as it obliterates the common man’s freedom of making a choice.

A choice with embargos is indeed no choice after all!

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