Network Neutrality and State’s Obligation: Freedom of Speech vs Access to Information

Introduction

Democracy is a defining characteristic of modern nation states. International laws, as well as the constitutions of countries, include the fundamentals to protect the integrity of any democratic system and individual rights, one of which is the freedom of speech. Freedom of speech/expression is one of the most important human rights recognized under international law. Article 19 of the International Covenant on Civil and Political Rights (ICCPR)[1] as well as the Universal Declaration of Human Rights (UDHR)[2] states that people have an intrinsic right to the freedom of opinion and expression and the freedom to acquire or impart information. Such human rights protections exist not only in the traditional sense (i.e. in a non-internet/non-digital world) but also transcend the internet. In 2011, the UN Human Rights Committee stated that the freedom of expression extends to “Internet-based modes of expression”[3] and the following year passed a Resolution for the “promotion, protection, and enjoyment of human rights on the Internet.”[4] This is embodied in the principle of network neutrality. Network neutrality pertains to the notion that all internet data should be handled fairly by all its users, whether customers, service providers, content providers or content consumers. It was first formally introduced into the international human rights regime in 2011 in the Joint Declaration on Freedom of Expression and the Internet, issued by various international and regional human rights bodies.[5] A major principle adopted was network neutrality according to which,

“…there should be no discrimination in the treatment of Internet data and traffic, based on the device, content, author, origin and/or destination of the content, service or application.”[6]

Thus, with the advent of new information technology, there has been an attempt to put the idea of network neutrality under the light of democracy and the human rights regime rather than as a solely technology-centric concept.

This article argues that the notion of freedom of expression/speech has been pivotal in the debates surrounding network neutrality. It places the concept of network neutrality under the international human rights framework as ICCPR and UDHR discuss the principles of non-discrimination and freedom of expression (which already include access to information as a subset). It does so under the idea of a state’s positive and negative obligations in ensuring human rights.

Network Neutrality and State’s Positive Obligation

The internet has come to identify itself as the largest channel of communication and information. Two characteristics which make the internet to be best suited to ensure freedom of speech/expression are the layers feature and the end-to-end encryption feature.[7] According to the former, the internet can be stripped down in three basic layers i.e. physical, logical and content.[8] The end-to-end feature works in connection with the layers feature and works to make sure that data is sent and received on each specific layer and ends up at the intended destination. From the perspective of intellectual property law theory, the internet can thus be categorized as a public good entailing two essential features: non-excludable and non-rivalrous. This means that people should be able to have open access to the internet and use it for freedom of speech and expression of innovation ideas.[9]

This decentralized internet architecture and its nature of being a public good can be compromised if private entities such as internet service providers (T-Mobile, AT&T, Verizon, etc.) or content providers (Facebook, Google, etc.) indulge in discriminatory practices that hinder people’s right to freedom of speech/expression due to their bottleneck characteristics, by providing services free of cost or at a discounted price.[10] Thus, network owners possess the capacity to block digital content or make it available through discriminatory pricing mechanism for commercial purposes.

In this way, the concept of network neutrality, though a purely technological and commercial one, inextricably intertwines with the notion of freedom of speech, which is a feature of democracy. Therefore, to keep the internet architecture intact, the legal framework surrounding the principle of network neutrality becomes significant. States have a positive obligation to allow for the freedom of speech and not allow any discriminatory practices by private entities that will conflict with the public’s interest in having a digital/cyber space where they are able to express themselves freely.

Network Neutrality and State’s Negative Obligation

The protection of freedom of speech is not just a positive obligation. The courts in the US have also interpreted the right to freedom of speech/expression as the state’s negative obligation to not restrict or unlawfully interfere with the freedom of speech, especially in public spaces. Such judicial interpretation was starkly visible in Comcast Cablevision Inc. v. Broward County where Broward County passed an Ordinance making it mandatory for a cable system franchisee to grant access to any Internet service provider who asked for it, on the same rates, terms and conditions as it provided to itself. The main contention was whether the government could regulate the technology of expression? The court ruled that the First Amendment extended the protection of freedom of speech/expression to cable-owners and the Ordinance curtailed their freedom of speech and expression, which was unconstitutional.[11] The courts had been acknowledging the rights of cable operators and service providers under the First Amendment earlier as well. In Los Angeles v. Preferred Communications, the court was of the view that cable television provided subscribers with information.[12] Restricting such information would not only violate their First Amendment rights but also the rights of other wireless broadcasters.[13]

In 1994, when the Cable Communications Policy Act of 1984 prohibited a local telephone company from offering video programming services to the common carrier subscribers of the telephone service,[14] the court held that such regulation by the government distorted the market for ideas and that telephone companies were “free to engage in speech advancing any view with respect to any topic and are free to transmit, with full editorial control, programming”[15] including “video programming” over their own common carrier networks.[16] In another case, Turner Broadcasting System, the US Supreme Court opined that the, “…unique physical characteristics of cable transmission should not be ignored when determining the constitutionality of regulations affecting cable speech.”[17] The freedom guaranteed by the First Amendment is thus only subject to minimal scrutiny.

This early judicial trend indicates that the debates around content neutrality existed long before we entered into the world of internet and network neutrality. Imposing a restrictive legal framework on service providers or content providers will threaten their right to expression.[18] According to Balkin, freedom of speech/expression is protected when network owners are not subject to any restrictions. Doing so is against democratic culture because the freedom of speech/expression is an individual as well as collective right. [19]

The Access to Information Debate

From legal literature to judicial opinions, it is evident that the network neutrality debate is skewed towards the freedom of speech, while the mention of access to information is, more often than not, absent, even though the right to speech does entail the right of access to information. This part of the article will analyze the right of access to information flowing from ‘zero-rated’ practices which were said to ‘threaten’ the principle of network neutrality.

As part of a philanthropic attempt to bridge the digital gap existing in developing countries, Facebook launched its Facebook Zero project which allowed users to access Facebook free of cost, in its stripped down, most basic user interface format. Another project which intended to eliminate the digital divide was Facebook’s Free Basics. By collaborating with mobile network carriers and certain websites, such as BBC and Wikipedia, etc., Free Basics provided people with access to a set of services for free, including news, health, weather updates, educational resources and local government information. It was able to partner with Samsung, Ericsson, MediaTek, Nokia, Opera and Qualcomm. Zuckerberg’s stance was that “connectivity” was a human right[20] and Facebook as an organization intended to bring affordable internet to populations in developing countries which otherwise did not have it.[21] Google and Wikipedia followed suit. Google tried to make the web more accessible to users by launching project Free Zone. It aimed to allow users to utilize Google+, Gmail and Google search without any data charges, by teaming up with various mobile network carriers.[22] Building onto the same philanthropic ideology, Wikimedia, an organization that initiated Wikipedia, proceeded to launch Wikipedia Zero. The project aimed to provide the free content available on Wikipedia to those who did not have access to the internet by partnering up with mobile carriers to waive off charges for accessing the content available on Wikipedia and making knowledge accessible to all, despite the circumstances.[23] The goal was to “end information segregation through the Wikipedia Zero project because access to knowledge is a human right.”[24] It was able to partner with many mobile carriers in its goal to remove barriers to information.

All these programs were discontinued, with the organizations citing ‘loss of consumer interest’ as the reason, though the emerging network neutrality debates and subsequent legislation in countries like Chile,[25] Brazil and India were most likely the causes of discontinuation, with Facebook being hit hard by network neutrality proponents criticizing Zuckerberg’s efforts. It was asserted that Zuckerberg was trying to sell the idea of Facebook being the internet and create a divide among internet users by using its powers as a gatekeeper to allow access to certain sites only.[26] Following this criticism and the banning of zero-rated practices in countries like India and Chile, the Free Zone and Wiki Zero[27] projects were also withdrawn.

The essential argument to be considered is that these projects were providing some avenue of access to information to people who were otherwise not able to access it due to lack of affordability or proper infrastructure in the areas in which they lived. States have been quick to jump in and say that network neutrality has been violated by tech platforms and telecom service providers which have been making specialized bundles and packages and offering them at low costs (and also low quality) to the underserved segments of society. It has also been contended that there exists preferential treatment of certain content through zero-rated services, thereby giving rise to antitrust concerns via discriminatory pricing. It is true that network owners and telecom companies do team up with content providers to provide access to free services on their networks. Examples can be seen in T-Mobile’s GoSmart package[28] and MVNO FreedomPop[29] which offered zero-rated Facebook, Messenger and WhatsApp messages, respectively. Airtel India launched Airtel Zero in order to provide free-of-cost website services. Mozilla partnered with Telenor in Bangladesh to provide limited free data to users on its Firefox browser.[30] Of course, when viewed from a commercial and competition lens, the argument that “sponsored data gives companies with more resources and capital to spend on advertising an upper hand”[31] seems valid. However, that it is important to note that these companies are businesses at the end of the day and it will be unreasonable to look at them as non-profit organizations. The steps they will be taking will only entail part of their corporate social responsibility. Sure, the information that will be accessible may be limited, but it will be more than what the state is willing to offer. It just seems like another argument cloaked under the principle of non-discrimination and antitrust practices and the platforms successfully achieving such competitive advantage. By focusing on antitrust practices and the breach of network neutrality, regulators refuse to see how zero-rating can actually favour the community.

It is also important to consider the state’s positive obligation to ensure that people have access to information without any barriers. By supporting and implementing the principles of network neutrality, the state can be said to fulfill only part of its positive obligation i.e. ensuring that private entities do not restrict access to information. However, the main question remains as to what steps the state can take in ensuring complete access to information for all as it ensures freedom of speech. States do not want a “two-tiered” internet because they fear that it will further divide the internet and distort the notion of what internet is and what real information looks like, considering that the underserved strata of society only have access to the limited one. At the same time, states still have to take steps to guarantee equal access to information for all by making internet services affordable. Altruistic attempts by tech platforms or telecom operators get attacked for discriminating amongst populations, yet no comprehensive measures get taken by the governments themselves. Thus, it wouldn’t be wrong to say that when it comes to the debate on the access to information as a fundamental human right, states are not really fulfilling either their positive obligations or the negative ones. If the freedom to access and impart information is viewed as a negative right, then platforms and service providers should not have their rights restricted unreasonably and the state should be under an obligation to not take measures that would do so.

Conclusion

With the growing significance of information technology, the debates surrounding network neutrality also gain momentum. The notion of network neutrality has been able to highlight the concerns of possible human rights violations posed by practices entailing zero-rating. Central to these discussions has been the freedom of speech/expression and the important role played by network neutrality in upholding it in the public spaces of the internet. While these have been pertinent in raising valid arguments and bringing the state’s attention towards its obligations in ensuring the freedom of speech/expression, an important aspect i.e. the right to access information, has been absent in the discourse so far. It is imperative that the discourse and debates surrounding network neutrality also focus on the access to information because this right is a subset of the right to speech/expression. Otherwise, as argued, it would lead to the state’s failure to fully recognize and fulfill its positive obligation in ensuring that people have full access to information despite the circumstances. If the state wishes to truly uphold the principle of network neutrality, without having network owners indulge in any sort of zero-rated practices, then it is under an obligation to remove the barriers to access of information for people belonging to various segments of society. The state cannot have its cake and eat it too by banning the efforts of corporations in bridging barriers against the access to information and at the same time not taking steps to ensure that the internet remains affordable and accessible.


References

[1] International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171.
[2] Universal Declaration of Human Rights (adopted 10 December 1948, entered into force 10 December 1948) 217 A (III).
[3] Human Rights Committee, ‘ICCPR General Comment No. 34’, (United Nations, 2011) < https://www2.ohchr.org/english/bodies/hrc/docs/gc34.pdf> accessed 24 December 2020.
[4] Human Rights Council, ‘The promotion, protection, and enjoyment of human rights on the Internet’, Resolution A/HRC/20/L.13 (United Nations, 2012) < https://documents-dds-ny.un.org/doc/UNDOC/LTD/G12/147/10/PDF/G1214710.pdf?OpenElement>. accessed 24 December 2020.
[5] UN Special Rapporteur et al, ‘Freedom of Opinion and Expression et al, Joint Declaration on Freedom of Expression and the Internet (United Nations, 2011) < https://www.osce.org/files/f/documents/e/9/78309.pdf> accessed 24 December 2020.
[6] Ibid Principle no. 5
[7]The Importance of Internet Neutrality to Protecting Human Rights Online’ (Center for Democracy & Technology 2012).
[8] Lawrence Lessig, The Architecture of Innovation (2002) 51 Duke LJ 1783.
[9] Tim Wu, ‘Network Neutrality, Broadband Discrimination’ (2003) 2 J on Telecomm & High Tech L 141.
[10] Smarika Kumar, ‘Zero Rating as the Demon and the Saviour: Rethinking Net Neutrality and Freedom of Expression for the Global South’ (2017) 13 Indian J L & Tech 70.
[11] Comcast Cablevision v. Broward County, 124 F Supp 2d (2001).
[12] Los Angeles v. Preferred Communications, 476 U.S. 488, 494 (1985).
[13] Ibid at 495.
[14] Chesapeake & Potomac Telephone Company v. United States, 42 F.3d 181 (1994).
[15] Ibid 109.
[16] Ibid 203.
[17] Turner Broadcasting System, Incorporation v. Federal Communications Commissions, 512 US 622 (1991) at 2475.
[18]Jack M Balkin, ‘Digital Speech and Democratic Culture: A Theory of Freedom of Expression for the Information Society’ (2004) 79 NYU L Rev 1.
[19] Ibid page 5.
[20] Mark Zukerberg, ‘Is Connectivity A Human Right?’ (Scontent-ams4-1.xx.fbcdn.net, 2013) <https://scontent-ams4-1.xx.fbcdn.net/v/t39.2365-6/12057105_1001874746531417_622371037_n.pdf?_nc_cat=103&ccb=2&_nc_sid=ad8a9d&_nc_eui2=AeGcAwDiKqGfxoTzXFZ4bHd2TTDm1RBIQk1NMObVEEhCTbuJFVpBKgQ_k0E-lzQ9VFstsK13OH701M13jvh-nxRP&_nc_ohc=uPh6WdDs05MAX9H6xeb&_nc_ht=scontent-ams4-1.xx&oh=b1c85f5b0581e2f32eea5bc0d00b685a&oe=60085D59> accessed 25 December 2020.
[21] ‘FAQ – Free Basics – Documentation – Facebook For Developers’ (Developers.facebook.com, 2013) <https://developers.facebook.com/docs/internet-org/faq#addservice> accessed 25 December 2020
[22] ‘Wayback Machine’ (Web.archive.org) <https://web.archive.org/web/20170301182432/http://wap.globe.com.ph/freezone-faqs> accessed 25 December 2020.
[23] ‘Wikipedia Zero – Wikimedia Foundation Governance Wiki’ (Foundation.wikimedia.org, 2012) <https://foundation.wikimedia.org/wiki/Wikipedia_Zero> accessed 25 December 2020.
[24] Brandon Russell, ‘Wikipedia Zero Brings Info To Mobile Users Without Internet | Technobuffalo’ (Web.archive.org, 2013) <https://web.archive.org/web/20130329194118/http://www.technobuffalo.com/2013/02/22/wikipedia-zero-sms/> accessed 25 December 2020.
[25]Nathaniel Mott, Chile Should Be Commended for Taking away Facebook and Wikipedia, PANDO (May 30, 2014), https://pando.com/2014/05/30/chile-should-becommended-for-taking-away-facebook-and-wikipedia
[26] ‘India Blocks Zuckerberg’s Free Net App’ (BBC News, 2016) <https://www.bbc.com/news/technology-35522899> accessed 25 December 2020.
[27] Aakriti Shrivastava and others, ‘Wikipedia Zero To Be Discontinued; Facebook’s Freebasics Should Follow Suit – Medianama’ (Medianama, 2018) <https://www.medianama.com/2018/02/223-wikipedia-zero-shuts-down/> accessed 25 December 2020.
[28]Gosmart.  ‘ENJOY 4G LTE FACEBOOK ACCESS ON ALL PLANS AT NO EXTRA CHARGE’ <https://www.gosmartmobile.com/wps/portal/home/!ut/p/a1/dYzLCsIwFES_ptvcWyoi7oKUvkFXrXcjqcS0GJOSRgN-vdqdoLM7w5kBgg7IiMeohB-tEfrDtD7F-7jIdxVWWXpA5EmTZvmqKJsaoQVaFPwTjlACKW375e3ITZ9sFJCTF-mkY3f3rgfvp3kbYYQhBKasVVqys71F-Gsy2NlD923CdDXPWrb8BbK9aww!/dl5/d5/L2dBISEvZ0FBIS9nQSEh/> accessed 25 December 2020.
[29] FreedomPop,  ‘FreedomPop Data subscriptions’ <https://www.freedompop.com/wa?utm_oscampaign=FP_US_WebDesktop_Visitor%20_NA&utm_osplacement=LandingPage_TopCtr_940x60_Open&utm_oscreative=USSVF_wa_UnlimitedWhatsApp> accessed 25 December 2020.
[30] Denelle Dixon, ‘Mozilla View On Zero-Rating – Open Policy & Advocacy’ (Open Policy & Advocacy, 2015) <https://blog.mozilla.org/netpolicy/2015/05/05/mozilla-view-on-zero-rating/> accessed 25 December 2020.
[31] Sam Becker, ‘Here’S Why No One Is Buying Into AT&T’S Sponsored Data Plan’ (Showbiz Cheat Sheet, 2014) <https://www.cheatsheet.com/money-career/heres-why-no-one-is-buying-into-atts-sponsored-data-plan.html/> accessed 25 December 2020.

The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any other organization with which she might be associated.

Iqra Saif Agha

Author: Iqra Saif Agha

The writer is a law graduate from Lahore University of Management Sciences (LUMS). She has previously interned with Insaaf Camp and Courting The Law. She has a keen interest in constitutional law, human rights, intellectual property and technology law.

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