TRAI Protects Internet Freedom


Internet is a platform where Internet Service Providers (ISPs) provide no competitive advantage to specific apps/services, either through pricing or Quality of Service.” These words of professor Vishal Misra an exponent on net neutrality, Columbia University, echoed strong support for net neutrality and summed up the entire nation’s collective voice over Internet freedom. While India eagerly awaited in anticipation the final verdict of the Telecom Regulatory Authority of India (TRAI) on ‘Differential Pricing for Data Services’, vide Press Release No.13/2016 the TRAI mandated the following:


  1. No service provider shall offer or charge discriminatory tariffs for data services on the basis of content;

  2. No service provider shall enter into any arrangement, agreement or contract, by whatever name called, with any person, natural or legal, that has the effect of discriminatory tariffs for data services being offered or charged by the service provider for the purpose of evading the prohibition in this regulation;

  3. Reduced tariff for accessing or providing emergency services, or at times of public emergency has been permitted; and

  4. Financial disincentives for contravention of the regulation have also been specified.[1]


In furtherance to this, TRAI in its draft Prohibition of Discriminatory Tariffs for Data Services Regulations, 2016 further enunciated its opposition towards discriminatory tariffs by penalizing ISPs acting in contravention to the said regulations, to the extent of directing such ISPs to withdraw such tariffs and further directing them to pay, by way of financial disincentive, an amount of Rs.50,000/- for each day of contravention, subject to a maximum of Rs.50,00,000/-.[2] This move not only puts an end to controversial free services such as Facebook’s Free Basics and Airtel Zero, but is also expected to bar data packages that offer access to only selected websites for a fees and messengers such as Facebook, Twitter or WhatsApp.[3]


As TRAI swings the pendulum towards the consumer after an extraordinary and prolonged influence of the telecoms, it has acted as a respite for the Internet users, who welcome this mandate with open hands. Mechanisms such as Free Basics offer limited Internet services for free to poor people. Although at the forefront, it appears to be a noble act, but if looked at in-depth is violative of the principles of net neutrality, as such zero-rated platforms and differential tariffs may create distortion in the way Internet is accessed by the masses.[4]


To understand the concept of net neutrality, one has to understand the implications of ‘differential pricing’. Telecom companies/ISPs work on the basis of a license agreement in terms of which the licensee has to ensure unrestricted access to the Internet.[5] This means that you pay a fee for each bit of data that you use. Ideally you should not pay more for accessing bandwidth-intensive content, such as live streaming or YouTube videos. Let us further understand this with a hypothetical scenario. In the modern day and age, Google has become our lifeline and is perhaps the Mecca for all our questions. In the words of Jimmy Wales, “If it isn’t on Google, it doesn’t exist.”[6] Imagine a scenario where Google starts charging its users for its services and determines different prices for access to different sites, with the search results being the only thing available for free. So, if you want to access a link, you will have to pay an extra charge for the same. The more you pay, the farther you will get ahead of the queue, past the other members who aren’t paying the content providers. With mechanisms such as differential pricing in place, the ISPs can steer you towards certain specific services because of commercial deals. However, Internet as we know it, is a renewable source of information and with the advancements in technology has become our basic necessity. But isn’t necessity accruable to all?


In India, freedom to access the Internet comes with government censors, expanded surveillance and restrictive privacy.[7] Such limitations imposed upon publically detrimental activities are understandable, however the Internet cannot be used by the ISPs to attain business profits by charging people for services that should be available for free.


Looking at the global Internet freedom scenario, following is a map showing exactly how free is the Internet in various countries:


[8]


From the perusal of the above, you can understand that the Internet in India is partly free. Policymakers in India should take steps to ensure that an open access Internet is available to the end-users, who can access lawful content, applications, services and devices of their choice. The Internet should always remain “open” and ISPs should be forbidden from improper blocking or degrading content sent over their networks.


As India looks towards developing an equal and balanced web world, allowing ISPs to filter and limit content and charge discriminatory and differential prices for its access will lead to an inevitable apocalypse of the Internet and while we head there, ISPs shall be the only ones going with deep pockets. For now TRAIs mandate and draft regulations act as a respite for the general Internet users. With policy review mechanisms in place (every two years), TRAI further seeks to ensure that adequate infrastructure and legislations are in place to protect Internet freedom.


“Fair access to the infrastructure will have to be guaranteed to all, as will provision of universal service, the definition of which must evolve in line with the technology.” [9]


Almost as important as the content of the order, was what it symbolized. We welcome the TRAI’s cautionary approach and hope that as India heads towards developing an equal and balanced web world, TRAI’s role as a regulator is further enhanced and made more flexible and competitive to the fast past, ever changing and expanding web world.



Disclaimer: The views and opinions expressed in this article are based on extensive and thorough research. In no way does the author or the law firm claim ownership of the ideas and concepts presented in this paper. Information so provided is to be strictly considered for general reference of the subject matter, which has been adequately referenced. Specialist advice should be sought about any specific circumstances directly from the law firm.

References

[1] Regulation 3 of the Prohibition of Discriminatory Tariffs for Data Services Regulations, 2016, dated: 08 February 2016


[2] Regulation 5 of the Prohibition of Discriminatory Tariffs for Data Services Regulations, 2016, dated: 08 February 2016


[3] Pankaj Doval, ‘Trai set to reject Facebook’s Free Basics and Airtel Zero’ (ET Telecom, 30 January, 2016) <http://telecom.economictimes.indiatimes.com/news/trai-set-to-reject-facebooks-free-basics-and-airtel-zero/50781063> accessed 16 January 2016


[4] Ibid.


[5] Ibid.


[6] Jimmy Wales (Brainy Quote) <http://www.brainyquote.com/quotes/quotes/j/jimmywales450088.html> accessed 16 January 2016


[7] Freedom House, ‘Freedom on the Net 2015’ < https://freedomhouse.org/report/freedom-net/freedom-net-2015> accessed 16 January 2016


[8] Ibid.


[9] Martin Bangemann, ‘The Bangemann Report’ <http://www.epractice.eu/files/media/media_694.pdf> accessed on 18 February, 2016



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