Neither free nor basic

SOCIAL media giant Facebook’s aggressive advertising campaign in newspapers across India has stirred up a hornets’ nest yet again over ownership and regulation of information on the Internet. Facebook’s much-touted “Free Basics” service, which has been couched in philanthropic terms as providing access to “basic” Internet services to millions of Indians for free through a mobile data application, has come under criticism from Net neutrality activists and concerned citizens who perceive it as anti-competitive and a threat to democracy in the virtual space.

Facebook first introduced the Internet.org platform last year which proposed to offer free Internet access to those unable to afford it. However, Facebook was to decide which websites they could access and would thus act as a gatekeeper for the content being made available. This was deemed to be in violation of the principles of Net neutrality, according to which the Internet should remain an open space with equal access to all players providing content and with the service provider having no control over the content. The principles of Net neutrality would ensure seamless, non-discriminatory access to information on the Internet for all people.

Following a public outcry against Facebook’s proposed programme, the Department of Telecom (DoT) released a report on Net neutrality in July 2015, which maintained that the principles of Net neutrality must be honoured by all entities in the virtual space. In September 2015, Facebook renamed its Internet.org initiative Free Basics, a convenient ploy to brand its product as a form of social service in a country with very low Internet penetration.

The platform was touted as a means of making the Internet accessible to people by providing them information for free on a range of basic services such as news, maternal health, travel, local jobs, sports, communication, and local government information. Facebook claimed that it was an endeavour to connect more and more people to the Internet. The service is currently operational in 36 countries. Reliance Telecom was to be the carrier for the service in India.

However, on December 22, the Telecom Regulatory Authority of India (TRAI) temporarily put the service on hold until it could determine whether the service violated the principle of Net neutrality. TRAI has also floated a consultation paper on the feasibility of differential pricing of data services to which it has invited comments from the public. Around the same time, Facebook launched a massive advertising campaign across the country highlighting the merits of its Free Basics platform and touting it as the first step to connecting one billion Indians to the opportunities online and achieving digital equality in India.

Net neutrality debate

Activists who support the principle of Net neutrality have been vocal against zero-rating data service plans such as Free Basics as they are perceived as a threat to the Internet as a level playing field and a democratic space for all entities. In such packages, Internet service providers (ISPs) enter into mutual agreements with content providers on an exclusive or non-exclusive basis to offer content free of cost to the end user. The customer incurs no data charges but the content provider has to pay the ISP for the usage of applications. Internet freedom activists deem this as working against the principles of Net neutrality.

Chinmayi Arun of the Centre for Communication Governance of the National Law University, Delhi, said: “The artificial binary being created in the debate on zero-rating plans between access to a limited Internet or no Internet at all is a false one. The aim of the government should be to provide full access to the Internet to all. In fact, the Digital India campaign envisages increasing Internet penetration in this manner. The proliferation of services which only provide free access to a few websites detracts from this larger vision.”

She also said that limits on the people’s right to access information violated constitutional provisions. “Zero-rating services affect the diversity of information [accessible] on the Internet. The process of denying people seamless access to information is violative of the right to receive information under Article 19(1) (a) of the Constitution. The right to freedom of speech and expression contains within it the right to receive information. Zero-rating services affect the right to receive information from diverse media content.”

In 2015, the Supreme Court affirmed the right of the people to have access to information in the context of the Internet in Shreya Singhal vs Union of India . Earlier, the Supreme Court had reiterated on a number of occasions the right of the people to receive information, including in Indian Express Newspapers vs Union of India (1985); Secretary, Ministry of Information & Broadcasting, Govt. of India vs Cricket Association of Bengal (1995); and Sahara India Real Estate Corporation Ltd & Ors vs SEBI & Anr (2012).

The promotion of data services allowing differential treatment to some entities on the Internet poses the grave threat of telecom service providers becoming the gatekeepers of content on the Internet. The debate has brought to the fore the importance of the government acting as a regulator for a scarce public resource. In a number of recent judgments, the Supreme Court of India has recognised the role of the government in protecting scarce natural resources and preventing their arbitrary use for purely commercial gains by private entities.

In Centre for Public Interest Litigation vs Union of India & Ors (2012), the infamous 2G spectrum case, the Supreme Court stressed the importance of spectrum as a scarce natural resource and emphasised the role of the state in acting as a guardian for the same. The state was mandated to ensure that the resource was utilised for public good and not for purely commercial gains by select private entities. In Association of Unified Tele Services Providers & Ors vs Union of India (2014), the Supreme Court reiterated this stand.

Role of TRAI

A recent consultation paper of TRAI has highlighted the issue of differential pricing of data services. The TRAI paper, which was open for comments from the public until January 7, flags up a number of risks associated with differential pricing of content on the Internet. The paper notes that differential tariffs result in discrimination between subscribers as they are charged on the basis of the content they want to access. For example, subscribers accessing websites which are not part of the free data plan will end up paying more than those who want to access the participating content. The paper also argues that differential tariffs work to the disadvantage of small players who may not have the wherewithal to participate in these schemes. Such players may have difficulty in attracting users if there is alternative content by bigger players made available for free. This will create entry barriers and also stifle innovation.

The TRAI consultation paper has asked the stakeholders concerned and the public at large a number of questions about differential pricing. The paper asks whether the mechanism should be allowed and, if so, what measures should be adopted to ensure that the principles of non-discrimination, transparency, affordable Internet access, competition, market entry and innovation are addressed.

Facebook campaign

In response to TRAI’s consultation paper, Facebook pitched its campaign for Free Basics. In full-page advertisements released in a number of newspapers, Facebook claimed that 800 developers had signed up for the platform in India and that 86 per cent of a representative poll in the country supported it. The advertisement stated that Facebook did not pay for any data consumed on the platform but that developers themselves wanted to be on it because of the greater Internet penetration it provided. Facebook also clarified that any developer or publisher could get their content on Free Basics as long as they met the technical specifications required by the platform. The advertisement stated that Facebook had never rejected a publisher or an application meeting these specifications.

As part of its campaign for Free Basics, Facebook also claims that about 3.2 million people have petitioned TRAI in support of Free Basics. In fact, the TRAI consultation paper, which was meant to generate public opinion on the larger issue of differential access to information on the Internet, has been hijacked by Facebook’s agenda of promoting Free Basics. On January 4, TRAI Chairman R.S. Sharma said that a record 18.27 lakh responses had been received in response to the consultation paper, of which 8.9 lakh respondents had simply stated their support for Free Basics while 5.44 lakh comments had been received via Facebook. Sharma said: “We had asked for responses to the specific question of differential pricing. Instead, we have got responses on supporting Free Basics.” Advocates of Free Basics and other zero-rating platforms often argue that limited access to the Internet is better than no access at all and is preferred by low-income users. This argument is not borne out by empirical evidence. Amba Kak of the Oxford Internet Institute, in an in-depth qualitative survey of respondents in lower-middle income localities in Delhi in 2015 titled “The Internet Unbundled: Locating the User’s voice in the debate on zero-rating”, found that low-income users preferred an open, unlimited Internet. The study also found that most people had rejected zero-rating plans in favour of all-access plans even when the latter were more costly or lasted for shorter durations.

Alternative models

A number of alternative models are available to enhance Internet penetration in rural areas other than differential pricing of data services. The TRAI consultation paper on differential data pricing points out some of these alternative models. It says that a telecom service provider could provide initial data consumption for free without limiting it to any particular content. The other approach could be initiated by content providers where they could reimburse the cost of browsing or downloading to the customers irrespective of which telecom service provider they use to visit a website.

The funds collected by the government under the Universal Service Obligation (USO) requirements from telecom companies could also be used to enhance Internet access. The USO Fund was provided for by the National Telecom Policy, 1999, as a fund to be raised through a “universal access levy”, which would be a percentage of the revenue earned by operators to be decided in consultation with TRAI. The fund would then be used to reimburse service providers rolling out services in rural and remote areas. The policy came into effect in 2002, and the rules for the administration of the fund were notified in 2004. Currently, the levy is 5 per cent of the adjusted gross revenues of all telecom service providers except those providing pure value-added services such as Internet, voice mail and email.

Sarvjit Singh of the Centre for Communication and Governance of the National Law University of Delhi said: “There is a corpus of Rs.40,000 crore in the USOF lying unutilised, which could be used for increasing Internet penetration and ending the digital divide.”