Nature of Net Neutrality Debate in India: Analysis and Overview of the recent developments
Net neutrality debate is hyper local in nature. It involves arguments evolving out of multiple local social variables such as geographical limitation, political discourse, economic conditions and legal landscape. Such nature in turn could be contributed to the complex nature of the human society and its digital manifestation, the Internet.Thus, all arguments in this debate would be governed by fundamental traits of the human society and shall be reduced to the arguments backed by such variables. This leaves for us to identifying such variables and reach a conclusion, if not about the debate then at least about the variables involved.
On the periphery, net neutrality debate seems to be governed by the social variables and the legal system operating in a society. Existence of another variable might be ignored because legal system and social variables cover all known and determinable variables of a society in general and digital manifestation of the society in particular. Further, social variables are determined by empirical evidences and legal system is dependent on decision making structure in a society. A contention dependent on these two variables can never come to a conclusion. The reason for the same is that same set of empirical evidence can be used to come to a diametrically opposite conclusions and legal reasoning is fundamentally arbitrary in nature. Only outcome of this debate can be that the two parties involved, reach a conclusion that there exists some fundamental deficiency in the core factors of these two variables. Hence, the most likely outcome of this debate is that both parties agree on lack of empirical evidences and deficiency of proper legal interpretation.
Debate in India
Net neutrality debate in the Indian context began with the release of a consultation paper by the Telecom Regulatory Authority of India. The paper had various opinion pertaining to the regulatory framework for over-the-top services and asked for comments of concerned parties on the same. Facebook’s ‘Free Basics’, a modified form of ‘internet.org’, is another extension in this debate. Campaign for this zero-rated platform has raised the question of net neutrality to a limited extent.
Much of the chaos in net neutrality debate is confined to the idea of discriminatory tariffs for transfer of data between the content developer and the end user. In the Indian context it is a contest between the proponents of an individual’s right of access to open and unhindered internet and the ones proposing that access to limited but subsidised internet is better than no access. However, due to the typical nature of this debate, arguments flowing from both sides are fundamentally flawed.
Argument of proponents that net neutrality is a sub-set of a higher value of freedom of speech and that the internet in its current form encourages innovation by allowing all content developers an equal access to the end users is rendered irrelevant by the core variables. Firstly, there is no empirical data to suggest that allowing subsidised but limited internet access will be detrimental for innovation in the content development industry. In fact, as claimed by opponents of net neutrality, limited subsidised access to the internet will encourage more end users to access full internet, thus increasing the total number of end users. This in turn will result in increased size of market place and thus increased space on the end user’s side for consuming innovation. Secondly, legal provisions pertaining to the freedom of speech would be better realised if more users are brought on the network and empowered to share their opinion. This can only be done if more individuals are initially allowed to access a section of the internet for subsidised rates and then they migrate to accessing the complete internet.
Opponents of net neutrality argue that zero rating services are the only method of increasing internet penetration and adverse effects of such services are exaggerated.However, first argument is refuted prima facie in light of ideas like equal rating and app neutrality. Equal rating refers to an equal access to all the services at a subsidised rate instead of access to a selected few services. Further, due to the lack of empirical data and hyper-local nature of internet, we can never conclude the exact extent of adverse effect that zero rating poses in the Indian context.
Possible course of action
Under the present circumstances, wherein appropriate empirical data is lacking and legal provisions can be interpreted in whichever manner required, possibility of taking any action with appropriate cost benefit analysis is difficult. This leaves us with limited options. These options include:
- Empirical evidence from another legal ecosystem might be used to arrive at a conclusion. A legal system having social and legal similarities to India must be preferred. Such an approach would ensure that most appropriate course of action is taken. Basic drawback of such an approach relies in the fact that no two societies can ever be similar. Hence, modification of laws in one society on the basis of empirical evidence collected from another might not have similar outcome in the first society.
- Constitution and other pre-existing legal provisions might be used as a basis to come to a conclusion. While this would appear to be an approach no different from the first one, this approach is fundamentally different from the previous approach in the sense that it prescribes for a rigid outcome and not one that could be modified in future. This approach is also problematic because outcome of such an approach will not be devoid of fundamental trait of law, arbitrariness.
- Eclipse laws might be an option. This means that zero rated platforms may be allowed and after operating for a reasonable period of time, once we have a set of empirical evidences, legal provisions might be modified accordingly.
The above mentioned three approaches are the only possible course of action. This is because of the fact that the above given three approaches cover all the combinations of the core reasons because of which this debate exists. While first and second approach are entirely based on empirical evidence and law respectively, third approach is a hybrid one. Seemingly third approach of eclipse laws is the most reasonable. Not only does this approach ensures an outcome of the standstill debate, but it also makes sure that legal system doesn’t act arbitrarily and appropriate consideration is given to the empirical evidence collected over time.
On February 8, 2016, the Telecom regulatory authority of India clarified the position with respect to net neutrality. In its guidelines, TRAI primarily prescribes for net neutrality. These guidelines restricts all the service providers from charging differently on the basis of the content. Any other agreement or arrangement of similar nature has also been restricted. Only exception is in the case of the emergency services. Ruling also prescribes for modification in the guidelines at an appropriate period of time.
While on the face of it this approach looks similar to the third approach of eclipse law, it indeed isn’t. It would have been the third approach had the TRAI decided to allow non-neutral services to operate for a certain period of time and then on the basis of data collected, modify the form of regulations. In the present model, by prescribing for net neutrality, TRAI has indeed allowed for arbitrary narrative of law to prevail. This has also devoid Indian population at large of the possible positive outcomes of differential pricing policy.
Above made assertions don’t support the idea of differential pricing. They simply state that by single handily taking an arbitrary legal approach, TRAI has not only devoid general population of a balanced legal approach, but also of the probable benefits of differential pricing, had there been any. This approach has not given due consideration to empirical evidence. Because of undertaking this approach, not only will we never have empirical evidence pertaining to the impact of differential pricing in the Indian society, but also the possibility of any further rational debate on the issue. Instead of adding a new variable to the debate and making it far more comprehensive and rational, this decision of TRAI has resulted in death of the debate and thus a complete full stop on a whole ray of promising outcomes and an inclusive democratic process.
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 Armgart, supra note 4.
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 Telecom Regulatory Authority of India, Consultation paper on Regulatory Framework for Over the Top (OTT) Services, 7 (2015).
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 These are the laws in which a certain law is enacted. With the passage of time impact of this law is observed, recorded and analysed. Based on the results of this analysis, after the passage of certain period of time, law is modified.
 Armgart, supra note 4.
 Prohibition of Discriminatory Tariffs for Data Services Regulations, 2016.
 Clause 3, Prohibition of Discriminatory Tariffs for Data Services Regulations, 2016.
 Clause 3(1), Prohibition of Discriminatory Tariffs for Data Services Regulations, 2016.
 Clause 3(2), Prohibition of Discriminatory Tariffs for Data Services Regulations, 2016.
 Clause 4, Prohibition of Discriminatory Tariffs for Data Services Regulations, 2016.
 Clause 6, Prohibition of Discriminatory Tariffs for Data Services Regulations, 2016.
 J. A. Eisenach, The Economics of Zero Rating, available athttp://www.nera.com/content/dam/nera/publications/2015/EconomicsofZeroRating.pdf.
 Arbitrary legal approach in terms of taking one of the two possible courses of actions when both were supported by equally strong but non-conclusive arguments.