India’s thought leadership on net neutrality
The year 2016 has already underlined its significance in the scheme of things of India as a nation. This year has already seen the Pathankot attacks which have once again brought the attention to the issue of protection and preservation of India’s sovereign interests. There is talk of the increased focus on protection and preservation of cyber security. In February, 2016, India has launched the world’s cheapest smart phone, which has generated immense interest not only in India but also all over the world, due to its potential transformative impact on mobile ecosystem as a whole.
While all these events have happened in swift succession, one decisive event took place this year, which has earned India immense respect amongst the major thought leaders of the world. Even the inventor of the Internet Sir Tim Berner Lee has congratulated India on coming up with strong Net Neutrality Rules and standing up for the Open Web. This event has further signaled the dawn of a new era, and has already started inspiring various nations to follow the Indian example.
On 8th February, 2016, Telecom Regulatory Authority of India (TRAI) notified game changing regulations in the Official Gazette, clarifying Indian position on Net Neutrality. Prohibition of Discriminatory Tariffs for Data Services Regulations, 2016 represent a landmark step forward.
These regulations have clarified the legal position concerning “discriminatory tariffs for data services” which deals with charging of different tariffs by a service provider for data services based on the content accessed, transmitted or received by the consumer.
These regulations have stipulated prohibition of discriminatory tariffs by declaring that no service provider shall offer or charge discriminatory tariffs for data services on the basis of content.
Further, it has been stipulated that 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 to the consumer on the basis of content.
However, these regulations have provided for some flexibility as in exceptional cases, a service provider may reduce tariff for accessing or providing emergency services, or at times of grave public emergency. What, however, would qualify as the public emergency has not been specified and has been left to subjective discretion of the regulator?
These regulations have been given teeth in as much as non compliance of the same would invoke an order for withdrawing such services in violation of the regulations as also a fine of Rs 50,000/- per day against the offending party.
The recent regulation of TRAI is a significant decision, because from the perspective of the common man, it actually symbolizes a new digital independence day that India needs to celebrate. In fact, in the last few years, we have seen predatory schemes pertaining to discriminatory prices being offered by service providers.
Seen from another perspective, charging discriminatory tariffs for data services , could tantamount to creating digital empires or digital colonies and therefore these regulations are a step in the direction of pushing back digital colonization and protecting innocent Indians from becoming victims of such digital colonization.
At the end of day, these kinds of regulations are extremely significant because they once again uphold the rights and the obligations of those Indians who are still not on to the digital bandwagon but who are likely to come onto the digital and mobile bandwagon in the next few months and years.
All said and done, these regulations will be imposed for a period of two years. TRAI has said that these regulations may be revisited after two years. Two years is a long period of time within which lot of developments would have taken place as far as the digital and mobile ecosystem is concerned.
The review of these regulations in 2 years ensures that the regulator would be flexible to make changes in the regulations, keeping in mind the changed realities of the times. To that extent, these particular regulations represents holistic approach in dealing with this complicated issue of discriminatory pricing and net neutrality.
The approach of TRAI has led to not just protection of consumer interests but also strengthened the hands of India for protecting its sovereignty and integrity. Such an approach is likely to assist the future growth of Digital India programme and would enable a level playing field.
From the perspective of some service providers, these regulations represent a step backward inasmuch as the said service providers would no longer be able to provide for discriminatory or predatory pricing schemes. From the standpoint of the said service providers, they would not be allowed to reach out to larger number of Indian users just because they are offering discriminatory pricing or free pricing schemes.
However, the entire issue need to be seen from a different perspective altogether. Today, the service providers want to offer differential pricing schemes primarily because they want to get access to data and meta data of users of such differential pricing schemes. Invariably, in today’s times of data monetization, these kinds of users data become significant gold mines for service providers. Many times, the manner in which such data and meta data are going to be exploited, are couched in complicated legal, fine print on the terms of such schemes. The net effect of such terms is that often users would accept and subscribe to such discriminatory pricing schemes without understanding the ramifications of the said terms on the enjoyment of their rights. The present regulations have come in at a time to protect the innocent users who are not familiar with the legal nuances pertaining to terms and conditions of such predatory pricing schemes.
Even as a nation, India has to be crystal clear. Just because something is being offered free, does not mean that the same will be the best bet. It is an old-age saying that whenever something is offered free to the consumer, the consumer is the product. The said principle equally applies on the issue of discriminatory pricing schemes.
It is imperative to see how these regulations will be implemented in the coming times. The proof of the pudding lies in its eating. Hence, what will be imperative will be to analyze the manner of how the provisions of these regulations would be implemented. In order to ensure that the Indian approach on net neutrality is sound and long lasting, it is imperative that provisions of these regulations need to be implemented in right earnestness. It will be interesting to see how the further working of these regulations and the future growth of the net economy and the mobile web in India evolves. The net neutrality is a very complicated subject and continuous nuanced and balanced approach while dealing with aspects of net neutrality will be the foundation for national policy making processes. The future represents a testing time ahead as far as development of net neutrality jurisprudence is concerned.
The writer is an advocate at the Supreme Court of India and heads Pavan Duggal Associates. He is Asia’s & India’s leading expert and authority on Cyberlaw & Mobile Law and has been acknowledged as one of the top four cyberlawyers in the world. He is the President of Cyberlaws.net and Cyberlaw India and can be reached on firstname.lastname@example.org