Mishika Bajpai & Anish Vohra, Students of Law, Symbiosis Law School, Noida
One of the prominent reasons behind the success of net activism has been the free flow of internet. Social media is bombarded with comments and discussions that take place online on all sorts of policies dealing with the society. Current affairs reach out to people in the fastest ways possible; making the general public much more aware than it was ever before. But this social net neutrality might come to a halt owing to the recent policy changes by the Telecom Authorities, disintegrating the unhindered access to internet. The development of right to know and right to freedom of speech and expression to its fullest will be lost somewhere in the dreary possible policy change when the operator will charge consumers for this privilege. The paper deals with the implications of this mandate and how over-regulation might hamper online networking where people impart insights, remarks and concerns in a greatly unregulated environment. The paper addresses the acute worry that the consultation paper might destroy the very nature of unhindered internet being free and open. The paper concludes on the note that such endeavors might be useful to curb notorious anti-competitive telecom operators joining hands and dominating the market and consumers. However, it is equally important to ensure that the larger consumer interest is protected by enabling internet develop in a manner where it is democratic, uniformly accessible, and with absolutely no discrimination.
The internet has played a profound role in the daily welfare of millions of citizens of democratic India, who have relied and made good use of this significant resource due to its free access. There have been several illustrations across the world guaranteeing the right of speech and expression and receiving of knowledge through different media. Article 19 of the International Covenant on Civil and Political Rights, has granted the right to freedom of expression through any other media of his choice ((International Covenant on Civil and Political Rights, Mar. 23, 1976, S. Treaty Doc. No. 95-20, 999 U.N.T.S. 171[hereinafter ICCPR])). Even the Universal Declaration of Human Rights under Article 19 includes the right to hold opinion without interference and to seek, receive and impart information and ideas through any media, regardless of frontiers ((Universal Declaration of Human Rights, G.A. Res. 217A (III), at 71, U.N. GAOR, 3d Sess., U.N. Doc. A/810 (Dec. 12, 1948) [hereinafter UDHR] Arts. 13, 17; European Convention For the Protection Of Human Rights and Fundamental Freedoms, Art.10. )). The outbreak of mobile phones, media player, and laptop devices has acted as a key feature in the lives of the digital citizens. If citizens can learn to network, their voices will be heard and will be productive, helping themselves to solve their own problems via technology ((Rheingold, Howard. “Using Participatory Media and Public Voice to Encourage Civic Engagement.” (2008) Civic Life Online: Learning How Digital Media Can Engage Youth. Edited by W. Lance Bennett. The John D. and Catherine T. MacArthur Foundation Series on Digital Media and Learning. Cambridge, MA: The MIT Press, 97–118; Talks, TED, 2006, Iqbal Quadir says mobile fight poverty, available at http://www.ted.com/talks/iqbal_quadir_says_mobiles_fight_poverty. last accessed on July 15, 2015)).
THE CONCEPT OF NET NEUTRALITY
Net neutrality is the idea of keeping the web free and open ((Sascha D. Meinrath and Victor W. Pickard, “The New Network Neutrality: Criteria for Internet Freedom,” (2008) International Journal of Communication Law and Policy, 12, 225-243; Timothy Wu, “Network neutrality, Broadband Discrimination,” Journal of Telecommunications and High Technology Law (2), 141-179 (2003);)). It is the way people access the internet without any discriminatory charge. This means that every website is equally available at the same access speed for every telecom service provider and the same data cost for this access is there for each site. People can use internet for accessing practically anything on the internet, be it videos, applications, voice services, search engines or email ((Rajat Gandhi, Net neutrality: Why Internet is in danger of being shackled, The Economic Times, Apr. 8, 2015, available at http://articles.economictimes.indiatimes.com/2015-04-08/news/60943272_1_net-neutrality-telecom-operators-viber last accessed on July 15, 2015)). Net neutrality had caught the attention of many when the TRAI’s Consultation Paper on Regulatory Framework for Over-the-top (OTT) administrations came out ((Id.)). Examples of OTT are Skype, Viber, WhatsApp, Chat On, Snapchat, Instagram, Kik, Google Talk, Hike, Line, WeChat, Tango, e-commerce sites (Amazon, Flipkart etc.),Ola, Facebook messenger, Black Berry Messenger, iMessage, online video games and movies (Netflix, Pandora). Today, users can directly access these applications online from any place, at any time, using a variety of internet connected consumer devices ((Consultation Paper On Regulatory Framework for Over-the-top (OTT) services, Telecom Regulatory Authority of India (hereinafter TRAI), May 27, 2015, at 4, available at http://www.trai.gov.in/WriteReaddata/ConsultationPaper/Document/OTT-CP-27032015.pdf last accessed on July 15, 2015)). If such a regulation is codified as a law, it could substantially reduce investment incentives, curtail innovation, and eventually harm consumers. Such a mandate would erode incentives to provide broadband Internet access and could thwart innovative applications or services from ever being developed. The recommendations on the subject are yet to be declared, however, there is a big possibility of curbing free access to the internet that the public has been enjoying over all these years. It would also, severely affect the freedom of expression to reach beyond the media to ‘a more engaged and expressive citizenry,’ and pushed governments to pay more attention to the views that citizens express. If the broadband organizations are permitted to charge content suppliers higher for quicker web administrations, it would abuse the individuals who can’t bear to pay such rates ((Id.)). This would mean disproportionate accessibility of data – a fundamental resource for a democratic world. Therefore, a pro net neutrality battle was witnessed to ensure unhindered internet in India underlines the significance of the web. If it be for the TRAI’s Consultation paper then alongside restricting our capacity to practice free expression it would also constrain the web that would ultimately counteract flexibility. Preserving an open Internet that is available to innovators, paying little heed to their size or riches, will advance a lively and focused commercial center where buyers have extreme control over the substance and administrations conveyed through their Internet connection. Policy cannot be applied without context, showing how and why it is relevant; therefore, it is equally important to study how other countries around the globe are addressing to this issue. These countries known for regulating e-freedom ((Jayadevan PK & Neha Alawadhi, Enact laws similar to those of pro-net neutrality nations like Chile, Brazil, US, say experts, The Economic Times, ET Bureau, Apr 16, 2015, available at http://articles.economictimes.indiatimes.com/2015-04-16/news/61217892_1_net-neutrality-indian-angel-network-internet-and-mobile-association last accessed on July 15, 2015))in a manner that’s most beneficial to the public have kept it free and open, curtailed by government regulation that interferes with the free market ((Sascha Meinrath & Victor Pickard, ‘Transcending Net Neutrality: Ten Steps Toward an Open Internet’, (2008 ) 12 INTERNET LAW 1, 19)). Internet being the third most complained service open access networks to the most vibrant competitive markets around the world.
THE INTERMINGLING OF NET ACTIVISM AND NET NEUTRALITY
The force of the internet is such that it significantly amplifies what is in question in considering how that balance ought to be struck. It is not denied that a slander surged in on the web may do huge harm to a man’s notoriety. However, Articles 14 and 21 are also violated since there is no intelligible differentia between the individuals who utilize the web and the individuals who by words talked or composed utilization different mediums of correspondence ((Shreya Singhal v Union of India, (2015) 5 SCC 1 at 52, 127)). To reject someone in light of the fact that he/she utilizes a specific medium of correspondence is itself an oppressive and discriminatory object and would fall foul of Article 14 regardless ((Id. at 147)). In spite of the fact that Internet interchanges may have the transient qualities of hearsay with respect to accuracy, they are conveyed through a medium more pervasive than print, and hence they have tremendous power to harm reputation. When a message enters the internet, millions of people worldwide can gain access to it ((Crookes v Newton  3 SCR 269 at §37)). Regardless of the possibility that the message is posted in an exchange gathering frequented by just a modest bunch of individuals, any of them can republish or repost or “retweet” the message by printing it or, as is more probable, by forwarding it instantly to an alternate discussion forum. Furthermore, if the message is adequately provocative, it might be republished over and over. The exceptional limit of the Internet to recreate perpetually any defamatory message loans trustworthiness to the idea that reality infrequently makes up for lost time with an untruth. The issue for slander law, then, is the manner by which to secure disrepute without stifling the capability of the Internet as a medium of open talk ((Lyrissa Barnett Lidsky, “Silencing John Doe: Defamation & Discourse in Cyberspace” (2000), 49 Duke LJ 855, at 863-64.)). One of the basic precepts of our general public is that citizens have the privilege to address issues they have with government arrangements in a peaceful way. The computerized age has overhauled this right, as sites help make and flow electronic petitions to pick up backing for changes that people feel are required all through society.
For a large number of youthful Indians today, the web is not an extravagance but rather a need. In a nation overflowing with political, social and monetary disparities, the internet is a freeing universe that levels progressive systems, makes space for development and permits unadulterated and thoroughly free articulation of discourse. It is a motivation behind why some of India’s best new companies likewise have required the web to be kept impartial ((A. Soni, How people power took on big business in the fight for net neutrality in India, The Guardian, May 25, 2015, available at http://www.theguardian.com/technology/2015/may/25/india-net-neutrality-people-power last accessed on July 15, 2015)). Here is when participative media that is available online is advantageous to situations like these. The object of such media is to empower democratic regimes where they seem to be missing; the purpose is to go beyond the mechanics of posting to work with posting an opinion—and to connect that rhetoric by playing the role of a citizen in a democracy. Internet has seriously modernized the way people of India have interacted and exercise their freedom of speech and expression and receiving information as a part of their fundamental rights. How net neutrality advances the same, can be understood by the following example –
Consider the utilization of twitter or blogs or Facebook posts around the world over today. A straightforward idea providing individuals to express their opinions and experiences regardless of physical space, capital, or political fringes, unlimited by any confinements. Now, imagine a post that contains a comment on a public policy or how the administration should mull over undermining, maybe an upholding of philosophies contrary to current policy. Under certain proposed Legislation, the Government could exploit official forces to bring down the post and even close down the site. This strategy postures genuine dangers to our opportunity of expression. With the freedom and capacity to channel content as it achieves the web, administrations could keep the transmission of option ideologies to the public, permitting the administration to practice expansive controls over the data that we get through the web.
Keeping up net neutrality would proceed with permitting people’s access to contending perspectives from debating and settling on educated choices on a mixed bag of subjects ((Sascha D. Meinrath & V. W. Pickard, The New Network Neutrality: Criteria for Internet Freedom, (2008) Int’l J. of Commc’ns L. & Pol’y 225, 237-239)); hence, smoothening the progress of realization of cultural, civil and political rights. And this is how participatory media ((Arnstein, Sherry R. “A ladder of citizen participation.” (1969) J. of the American Institute of Planners, 35:216–24))helps in broadening the democratic horizon and enables cultural production and authentically democratic political influence. If broadband and rapid Internet contacts each local, then each of them would really have the ability to join in, and advantage from, the overall information change and add to a balanced improvement of the nation. Internet facilitates that inviolable right to freedom of speech and expression that has been granted to Indian citizens under Article 19 (1)(a) of Constitution of India. There have been a plethora of judgments declaring the right to express and the right to know ((Tata Press Ltd. v. Mahanagar Telehone Nigam Ltd. (1995) 5 SCC 139))as major facets of our constitutional foundations. This important facet of media breaks down traditional barriers be it geographical or jurisdictional constraints ((Maneka Gandhi v. Union of India, AIR 1978 SC 597)), and facilitates free speech and exchange of ideas like no medium has before ((M. Divan, Facets of Media Law, (1st Edition, Eastern Book Company, 2010) 22)). The communication of ideas may be through any medium, electronic ((Secretary, Ministry of Information and Broadcasting vs. Cricket Association of Bengal, AIR 1995 SC 1236)), audiovisual ((Tata Press, supra note 19 at 156)), newspaper ((Sakal Papers v. Union of India, AIR 1962 SC 305; Bennett Coleman & Co. v. Union of India, AIR 1973 SC 106))or magazine ((S. Raghgarajan v. P. Jagjivan Ram, (1989) 2 SCC 574.)). In this age of information and accountability, where the live telecast of legislative proceedings has become mandatory ((Gazette Notification No. 16(1) Cable /2005 E-III dated 25.02.2005 issued by Prasar Bharati)), public interest also seeks discussions stemming from the members of a democratic society who should be sufficiently informed as they may influence intelligently the decisions which may affect themselves ((Attorney General v. Times Newspaper Ltd, (1973) 3 All ER 54)). It was rightly held that Right of Information is facet of ‘speech and expression’ as contained in Article 19(1)(a) of Constitution of India ((Peoples Union for Civil Liberties v. Union of India, AIR 2004 SC 1442 at 1453; S.P. Gupta vs. Union of India, 1981 Supp SCC 87)).
Government, in the activity of its Executive power by method for a policy decision, makes an entity or divests its capacities, which may have an orientation upon the Fundamental Rights, for a private body or exchange of open substance to a private body, in such an inevitability, the capacities prior released by the Government can’t be termed as absolutely a private capacity. Such an understanding would be needed to ensure that this privilege is flexible for expression, on the web or elsewhere, so as to guarantee satisfaction in human rights ((S.P. Gupta, supra note 28 at 273)). Once advanced opportunity is traded off, the predetermination of every site, regardless of its size or quality, will be dictated by telecom administrators giving access to Internet. Media new businesses or little autonomous media endeavors will obviously be prompted for setbacks in which telecom organizations are engaged to make quick and moderate paths or segregate content for business reasons. In the event that they lose their opportunity to make and offer substance, these little media players are subject to shutdown as a result of their failure to shoulder the extra weight of particular treatment. Net activism will also take a back seat if the public is not aware of the current events and comment on recent policies online for the others to read, thereby eliminating the thread of comments and opinions. A few TV news stations bit the dust simply because they couldn’t bear the cost of the carriage expense charged by link and DTH administrators. The proposition of getting rid of unhindered internet, as mooted by the TRAI paper, raises the likelihood of media sites excessively falling prey, making it impossible to the carriage charge model. If the TRAI proposition were to be acknowledged, India will have all the more control in the same way as China, which has infamously controlled web access, than with the US, which as of late received a “hard law” to secure unhindered internet. Accommodating this sudden push some telecom and Internet organizations have made preparations for “zero rating arrangements” (or differential rating for distinctive locales, applications or administrations). The requirement for unhindered internet oversight to guarantee the diversity of content and check any endeavor to throttle streets to get to data has arisen. The big news portals that could earlier bear the cost of the carriage charge requested by telecom organizations will now be compelled to move their spending from news social occasion to dispersion expenses, influencing the nature of news-casting. The defenselessness of set up media houses is apparent from the experience of the internet.org plat-structure advanced by Facebook. They are under pressure to remain focused stage keeping in mind that they turn out to be less open on the web. The thought of making the Internet less open will likewise have security suggestions as well. The security of writers may be traded off as telecom organizations will do “deep packet inspection” that will include profound bundle investigation as a component of their business arrangement to guarantee rapid access to certain site and back off access to others.
Readers and viewers will be denied of decision in the post-net neutrality time as they will have entry just to those media locales that are clients of the telecom administrator. Meanwhile, sites of little distributers and territorial press media players are prone to vanish from the radar of Internet clients. As the Internet loses its current dynamism and openness, it will get to be harder for new contestants to be seen regardless of the value of their advancements. The disintegration of unhindered internet would discourage media startups and as well as settled news associations.
Thus, there is tremendous chance to make great utilization of innovation on the guided way of decency standards to accomplish innovation and free discourse of speech and expression. The authors feel that if the issue of unhindered internet is given equivalent significance alongside issues like rivalry, openness, security and accommodation, it would not be hard to understand the objective set by the law makers. Notwithstanding the way that India has the sizeable resources to accomplish the authorization of this privilege, the deficiency of base is an obstacle to the same. Since this advancement has surfaced during an era when telecom organizations are going into system sharing understandings and tie-ups for offering free access to specific sites and versatile applications, these exercises have raised significantly bigger attentiveness toward the unreasonable rivalry guard dog. The Competition Commission of India needs to make stringent strides in deciding any conceivable monopolistic or tricky dealings. It ought to keep a nearby watch on whether telecom and web access suppliers are taking part in hostile to aggressive business rehearses by giving particular treatment to choose versatile applications and sites. Gapping the advanced partitions will be conceivable with fruitful and effective arrangements by the Government considering the perils, externality and opportunity costs. The thought is to acquire equality amongst administration suppliers, in order to urge the new businesses to contend with the greater ones. If legislature is unable to manage the cost of giving information for free, then taking into consideration zero rating for those locales will again bring about differential treatment. When the net impartial methodology is received, even the free Wi-Fi model augured, would work well if the customers are given some piece of their bundle without charge, for reasonable use. As a result of a suspicious apprehension of meddling with the point of preference that the Internet has now brought the foremost focal points by its continuing augmentation, it is fairly favorable that the law ought to encourage and support such advances, not attempt to constrain or frustrate them by clashing and lacking. Conversely, neither has the enactment sufficiently developed to know the ideal measure of intercession that is required in order to make this human right flourish nor are the State Governments in concordance with their web arranges. It will likewise be intensely significant learning from the experiences and mix-ups of different nations while confining free web to all. The cost of Internet combination in India is broadly high. An effective computerized consideration philosophy gives an approach to full enthusiasm for a propelled society. Picking up a superior comprehension of how this new market method functions will be fundamental in the propelling years considering the anticompetitive lead by telecom administrators. Additionally, the issue of unhindered web in the whole deal can undermine reputation of open interest based Internet telephony and relative distinctive applications as all the moderate Internet suppliers may start requesting business and without business understandings they may decline to convey the substance and give wanted nature of administration. Unhindered internet would help ensure the Internet’s free and open character in India and that a deviation from the same will abuse citizens’ fundamental right to speech and expression as well as the fundamental right to know.