The following article by Smarika Kumar was first published in The Hoot.

In December 2014, Airtel decided to charge a differential tariff on VOIP calls (Voice on Internet Protocol calls, such as those made possible by Skype or Google Talk). Themove received a lot of flak on the internet and eventually Airtel had to withdraw its new tariff plan, though in lieu, TRAI has announced an upcoming consultation on the issue.

Such differential charging of regular internet data and of VOIP call data over the internet is a violation of “net neutrality.” What is net neutrality? For one, it is not legally enforceable as of now. Here’s an easy-to-read piece on its basics. But with net neutrality emerging as a major issue in both the USA and the EU last year, it is no wonder that the Indian telecom sector is also trying to rake it up in India, hence Airtel’s differential tariff.

For a while now, there has been a general uproar that such a violation of net neutrality will result in the end of an internet of easy access and innovation. As a common internet user, why should you be concerned about it?

Because the debate around net neutrality has direct impact on the Fundamental Right to Freedom of Speech and Expression guaranteed by our Constitution under Article 19(1)(a). Commentators have argued that having net neutrality is essential to preserving the freedom of speech. While this is fair, statements like these also result in the loss of nuance in the debate.

The two sides of the debate: the pro-net-neutrality and the no-net-neutrality camps are not so much consistent-with-Article-19(1)(a) and violative-of-Article-19(1)(a), as providers of two distinct perspectives on the interpretation of Article 19(1)(a). Not just this, the common internet user has stakes in both these interpretations. However, in the popular mind, having net neutrality is pro-citizen while lack of net neutrality is anti-citizen. This article is an attempt to break this popular conception and argue that citizens’ interests are more complicated than this simplified analysis. In fact, the net neutrality debate is between Internet Application Providers (IAPs like Google, Facebook, Whatsapp) and Internet Network Providers (INPs, that are mostly telecom companies like Airtel, Tata, BSNL), and not strictly between citizens and INPs.

The No-Net-Neutrality Argument: Reducing  the Digital Divide Through Differentiated Markets
A lot has been said about the problematic aspects of not having a legal regime upholding net neutrality. But how do people justify a non-net-neutrality regime? Professor Christopher Yoo of the University of Yale has done some excellent work in this area. Building upon economic theories and a plethora of empirical data, he argues that the lack of net neutrality helps create differentiated markets in the INP market. Which means that in the absence of net neutrality, INPs are able to offer the consumer services they are interested in at more competitive, and hence at lower prices. Lower prices for desired internet applications allow the citizen access to their services at lower prices, or access to services which the citizen was unable to afford before.

The academic consensus since the 1990s indicates that telecommunications is not a natural monopoly as previously thought. This means that the telecommunications market generally and the INP market specifically, will be most efficient (producing the cheapest and best quality services) when it is competitive with a large number of private players. How can private players be encouraged to invest in the INP market? By ensuring that they get optimum returns on their investment. It is argued that the principle of net neutrality prevents this from happening. Net Neutrality essentially means that IAPs, which unlike INPs have not made the heavy investments required for the development of internet infrastructure, nevertheless get to commercially profit from its use.
So under a net neutrality regime, for all practical purposes, INPs are compelled to invest in and support the business of IAPs without deriving a cut of IAP profits. This would be still fine if the services or products offered by IAPs and INPs were non-substitutable. But Internet telephony changes that.

The emergence of VOIP services like Skype and Whatsapp means that IAP services are now directly competing with INP services like long-distance telephony. In the past, TRAI has allowed VOIP services to operate by differentiating them from long-distance telephony on the basis of quality and prices. But as the quality of VOIP services improves, the question which looms large is whether the VOIP services of IAPs and the long-distance telephony of INPs can be differentiated anymore? Can one not be substituted for the other? Will IAPs and INPs not then be direct competitors?

And if indeed one can be substituted for the other, then what effect will net neutrality have upon investment in infrastructure, and therefore on access to the internet? It is argued that it will give rise to the tragedy of commons (the commons here being internet infrastructure) whereupon nobody will be willing to invest in the development of the infrastructure simply because such investment is a losing game when the investor INP is compelled to share it with its competing IAPs.

It may be asked if it is reasonable to assume that allowing differential markets to INPs will result in better investment in infrastructure? It is argued on the basis of the tragedy of commons principle that differential markets whereby IAPs are not “free-riding” on the INP-created infrastructure will incentivise INPs to expand their market by creating yet more  infrastructure, for example, in rural areas. Differential markets are also hoped to encourage newer players in the INP market thus enhancing competition to build new infrastructure. In a way this is already being seen as Google and Facebook gear up with Project Loon and Internet.org respectively in anticipation of net neutrality violation. Additionally, it is pointed out that the use of INP-developed infrastructure results in congestion from the massive traffic flowing from and to big IAPs (which don’t pay extra for the congestion they cause), degrading the quality of services for users and smaller IAPs. The argument goes that for the citizen consumer, this means less last-mile infrastructure and poor internet connectivity and access in large swathes of the land because of the non-existence of infrastructure. If access to the internet is thought of as a Fundamental Right under Article 19(1)(a)’s Right to Information and Right to Freedom of Speech, a legal mandate for net neutrality could also be argued to mean a constitutional violation. This is because it would amount to a government regulation which is preventing citizens from speaking or receiving information by hindering their access to internet. The argument thus goes that lack of net neutrality not just allows for competitive prices to the consumer, but also helps extend the infrastructure for the internet into remote areas and villages, thus reducing the digital divide. The upshot is better internet access for citizens.

The Pro-Net Neutrality Argument: Enhancing Content Diversity Through Equivalent Treatment
So far, I have broadly outlined the arguments against net neutrality, the crux of which is that it hinders easier internet access. The response to this from the Pro-Net Neutrality camp is that infrastructure for the internet should be built and provided by the State as a public amenity. But in light of the realisation that telecommunications, including the internet, is not a natural monopoly, economic rationale holds this to be an inefficient proposal because public investment in internet infrastructure will be far costlier and of poorer quality than it would be if the market was left to do its job. The oft-cited example in support of this is the market-mediated telecom revolution which India saw in the 1990s which did not happen in the State telecom monopoly era before that. The issue of public investment in internet infrastructure also becomes a loaded one when the decision of allocation of public expenditure comes up, especially in a developing country like India: Should the funds from critical areas like health and poverty-alleviation programmes be diverted to broadband development?

All this is not to say that there is not some genuine merit in the arguments supporting net neutrality. The argument that State should directly provide internet access is a compelling one, if not the most obvious way to go considering limited State resources.But there are also other arguments. The existence of net neutrality helps facilitate equal opportunity of speech on the internet. In the absence of adherence to net neutrality, entities and people with deep pockets hold the ability to stifle others’ speech.

Vertical integration borne out of competitive INP/IAP markets facilitated by the absence of net neutrality regulation may produce economic efficiency. But it also lands content entirely in the hands of a single owner, or limited number of owners, thus enabling small groups of people to speak more loudly than others. This is because competitive markets, resulting in market differentiation, lead to bundling of internet content with the service providing internet access. Therefore an INP like Airtel may tie up with hand-picked IAP services like Gmail or Facebook to offer a consumer plan providing selective access at a reduced price or at an enhanced speed. Such an arrangement will spell doom for IAP startups or small-time IAPs which do not have the money to invest in tie-up arrangements with INPs. Lack of net neutrality in such a scenario will effectively mean that INPs will become gatekeepers to content on the internet. IAPs which are able to buy their way into getting their content more accessible on the internet will be able to stifle the voices of those who are not able to afford it. Conversely, internet users who are seeking to receive information from the medium will be reduced to accessing the content of the established players. And they will be unable to access content from a diversity of sources. What no-net-neutrality arguments inevitably fail to get is that internet services, like any other media services, are not merely economic goods, but go way beyond that, forming an essential component of culture. As TRAI states, (albeit missing the statement’s full import in its policy recommendations):“The market for ideas is very different from that for, say, shoes or biscuits.The media serves a higher purpose and needs separate consideration. The principles adopted in the competition law may not serve the special purpose of addressing the need for plurality of news and views.”

It is then implied that pluralism and diversity of sources of speech or content on the internet is a value critical to our understanding of freedom of speech. The absence of net neutrality regulation in such a scenario will create circumstances where the speech of one IAP or individual over the internet may be more protected than the other, thus not just violating Article 14’s Right to Equality, but also failing to realise Article 19(1)(a)’s Right to Freedom of Speech and Expression under the Constitution.

What Gives?: Two Aspects of Article 19(1)(a), Both Pro-Citizen
For citizens then, the conflict in the net neutrality debate arises not so much from the lack of net neutrality being against their interests. Rather, it arises from the faceoff between two pro-citizen principles: that of access to the internet and of diversity of sources and pluralism on the internet. The principles of access and of pluralism are both important to the understanding of Article 19(1)(a) of the Constitution. Pluralism in television media has been declared to be part of Article 19(1)(a) by the Supreme Court in Cricket Association of Bengal in 1995. In the Sakal Newspapers case of 1962, the principle of access to newspapers is also recognised as inherent to Article 19(1)(a) when the Supreme Court states, “Though the prices of newspapers appear to be on the low side it is a fact that even so many people find it difficult to pay that small price. This is what has been pointed out by the Press Commission in paragraph 52 of its report. According to it, the most common reason for people in not purchasing newspapers is the cost of the newspaper and the inability of the household to spare the necessary amount.” This explanation is then used to rationalise the right to circulate at reduced prices under Article 19(1)(a).

Applying both these principles to the internet, Article 19(1)(a) should ideally endorse both access and pluralism on the internet. But the manner in which the net neutrality debate is structured forecloses that very possibility because it creates fault lines along these very principles – so that if the outcome allows for access it does not allow for pluralism and vice-versa.

The architecture of the debate itself pushes for trade-offs of one type of interest of the citizen against another type of interest, again, of the citizen. This means that whichever camp one chooses – pro-net neutrality or no-net neutrality – one ends up compromising on at least one type of interest of the citizen: either access or pluralism. To put it bluntly, from a citizen’s point of view, structuring the debate on these fault lines is simply paradoxical and lamentably simplistic.

The Net Neutrality debate, as it currently stands, does not address citizens’ interests in any comprehensive manner. At heart, the debate remains a face-off between IAPs (pro-net neutrality) and INPs (no-net neutrality). Which way the law leans will obviously impact the ability of citizens to exercise freedom of speech, albeit in different ways: either on grounds of access or on grounds of diversity. But this does not mean that citizens’ interests can be conflated with, and then replaced for the interests of either IAPs or INPs. Citizen interests concerning freedom of speech are distinct from those of either IAPs or INPs: Their interests include both easy access to internet and easy access to a variety of choice of content on the internet. Can one then reframe the debate so that irrational tradeoffs (from the viewpoint of the citizen) between these interests are not willy nilly made in policy outcomes?There is an extremely serious need to engage and rethink the architectural choice for the debate itself if emergent policy is to fully realise the spirit of Right to Freedom of Speech and Expression under Article 19(1)(a).