Freedom of Expression and Right to Information are the two rights which makes a country truly democratic. If the citizenry is well informed and has the right to communicate then it fosters democracy. In a society of competing interests these ideals are not easily achieved unless guarded and protected by laws. Right to freedom of expression does not talk about the medium of expression. Hence it is not the medium which is important to communicate but rather to communicate whatever be the platform. Thus in a democratic setup one has a right to communicate freely even online. This guiding principle on internet is called Net Neutrality. An internet that protects and enables free speech is an open internet. For example when you make a call, your telecom company should not decide who you can call and what you talk, similarly a net is neutral if your net provider is not concerned with what you do on internet.
Net neutrality is the principle that all data should be treated equally on internet by internet providers and they should not discriminate between the two sets of data. A closed internet is the situation in which internet providers favor certain data over other data. There are many ways to do so namely bandwidth throttling(controlling volume of traffic in a specific period), discriminating by the protocol used for communication and many more. As of 2015, our country has no laws or regulations governing this issue. The mother legislation in this field, the Information Technology Act 2000 and other supporting regulations do not mention anything about net neutrality.
Recently in a case of Shreya Singhal vs Union of India, the hon’ble Supreme Court struck down section 66A of the IT act which arbitrarily invaded the right of free speech. “There must always be a balance between such right of speech and the reasonable restrictions that may be imposed on such right”,said the Bench. One implication of this ruling can be the interpretation that internet is free and accessible to all but data can be benificially discriminated to protect the internet from any damage. It needs to be mentioned here that Chile became the first country in the world on 13June2010 to amend laws in favour of net neutrality. Netherlands was second in enacting network neutrality law. On February 2015 the US Federal Communications Commission reclassified Internet service as Telecom service also called common carrier, thus ruled in favor of net neutrality. A common carrier is one that is responsible for any possible loss of goods during transport as opposed to contract carrier. In India TRAI issued a consultation paper to initiate debate on how Over THE Top Services can be regulated. Over The Top services are services accessible over the internet which ride on operators’ network. Technical definition is not for layman like us, so we can understand by examples. Social networks(Whatsapp, Skype) and Search engines(Google) are examples of OverTheTop services. Consultation paper issued by TRAI has induced fears in minds of pro-net neutrality community. Though some concerns are genuine, some shows the bias. Genuine contention of Telecom Service Providers is that they have invested in building the infrastructure(incurred as capital cost) and there is a cost of operation(license, spectrum usage charge). NowOTT communication services( voice or vedio calling on net, or messaging) cost less to a consumer, and this difference in price has prompted the success of OTT apps and services.
Now Telecom Operators are right in there concern because first OTTs are using their networks and again are in direct competition with these licensed communication services. This is like you are using my platform and also competing against me. I bore the cost of creating a platform to sell my services. You are using the same platform to sell the similar services. Thus TRAI asked several questions concerning these issues. It has asked whether OTT players should pay for use of TSPs network over and above data charges paid by consumer. It has nothing which should worry a consumer ulness extra costs are passed on to consumers. Better regulating laws may safeguard the interest of a consumer as well as other stakeholders in competition. But the point which is largely disputed is that TRAI asked whether TSPs should be allowed to implement non-price based discrimination of services. Here it seems TRAI is lobbying for TelecomServiceProviders. I would say anykind of discrimination should not be allowed unless it is for protecting the internet and for security purposes. If revenue loss can be compensated by way of other adjustments between different stakeholders, no discrimination by user content or services can be allowed.
This issue is much more complicated then it seems to be. TRAI should not do anything in a hurried manner. All the stakeholders must come at compromise solution which do not harm the consumers by way of curbing their fundamental rights of freedom of being informed and communicative. The role of a Government in a social democratic set up should be of a facilitator which facilitates the competing interests in such a way that none of the stakeholders has an undue advantage over others and none are discriminated just because of being a competitor. And the most important role of a regulating authority in this digital era is to safeguard the interests of consumers at the end nodes of service channel. Consumers and startups have a right to virtual equality safeguarded by laws which are not coercive and are conducive and enabling somehow to all stakeholders.
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