THE LAW ON NETWORK NEUTRALITY (PART – I

)

A. VIOLATION

OF RIGHT TO TRADE AND OCCUPATION OF THE PETITIONERS, OTHER WEBSITES AND

APPLICATIONS ON THE INTERNET.

‘Trade’ has been defined by the Supreme Court of India in the case of Sodan Singh v. New Delhi Municipal Corporationi as including “any bargain or sale, any occupation or business carried on for subsistence or profit, it is an act of buying and selling goods and services”ii. Occupation has also been defined as “that which principally takes up ones time, thought and energies, especially ones regular business or employmentiii. It is well known that a website provides services to its consumers in the form of the content or applications available on it. A website depends upon its ISP to enable its consumers to get access to itself. Thus, it logically follows that if the ISP indulges in practices that tend to favour one particular website over another, the website discriminated against loses its interaction with its consumers. Furthermore, due to the violation of the principles of network neutrality, in the long run, such impugned actions shall have the consequence of reducing the amount of innovation in the markets for applications, content and portals at competitive costs to the societyiv.

Taking into account the absence of sophisticated technical knowledge about the working of the Internet and the technical intricacies involved in its functioning, consumers are more than likely to put the onus of non-access to a particular application upon the website itself, rather than on the ISP. The ISP may also

encourage this as was the case in Comcast v. FCCv. This results in a substantial loss of goodwill for the specific application or website among the consumers and individual subscribers.

The above described consequences shall ultimately result in an infringement of the right to trade and occupation of websites and Internet applications. Furthermore, such practices if allowed shall result in the monopolisation of the network by ISP’s under the garb of claiming a right to practice their trade by blocking certain websites and applications in order to promote either their own Internet applications or other Internet applications favourable to the ISP, further resulting in an infringement of the rights to occupation and trade. Any arguments claiming to rebuff this conclusion as exaggerated shall fail as history has shown a poor track record for last – mile facilities based competition.vi

B. INFRINGEMENT OF THE CONSUMER’S RIGHT TO CHOOSE.

“Article 21 is the heart of the Constitution. It confers right to life as well as the right to choosevii”. Furthermore, the foremost right of a consumer is to choose from amongst a range of products and services. The consumer’s right to choose is also enshrined under Sec. 6 of the Consumer Protection Act, 1986viii, which states that the consumer has the “the right to be assured, wherever possible, access to a variety of goods and services at competitive pricesix.

In the present case, the impugned actions of the respondents resulted in the denial of the said right to the individual consumer or subscriber of the broadband service as individual subscribers were unable to freely access Internet applications and websites of their choice. Websites like musicforum.com, movieforum.com, et al (members of the group of petitioners) were free and consumers would not have had to bear any costs to view the content of these websites. The content on both websites being similar, it is safe to assume that consumers would prefer the free websites to the paid ones. By disabling its users from accessing the free sites and applications, the respondents infringed upon the individual’s right to choose and to access competitive services of their choice.

C. INFRINGEMENT OF CITIZEN’S RIGHT TO RECEIVE AND IMPART INFORMATION.

It has been observed by the Supreme Court of India in the case of Secretary, Ministry of Information and Broadcasting v. Cricket Association of Bengalx that “the freedom of speech and expression includes right to acquire information and to disseminate it...it is the best way to find a truest model of anything, since it is only through it, that the widest possible range of ideas can circulate...The right to communicate includes right to communicate in any media that is available whether print or electronic or audio-visual.”xi Further, it has also been observed that free speech is the foundation of democratic society.xii A free exchange of ideas and dissemination of information without restraints are the basic ideas of free society. xiii A citizen has a fundamental right to use the best means of imparting and receiving information.xiv Network neutrality essentially protects this free speech right.xv

It has also been recognised by the Supreme Court of the United States that the potential for abuse of this private power over a central avenue of communication such as the Internet cannot be overlooked.xvi The application of the right of the freedom of speech has also been recognised as applicable to the Internet and cyberspace.xvii Any restriction on such expression on the Internet could result in the “beginning of the end of the Internet as we know it.”

In the present case, the respondents arbitrarily without any justifiable cause degraded the performance of certain websites, rendering it virtually impossible for individuals to communicate and interact via the medium of their Internet applications. The problems arising for individual subscribers regarding the popular social networking site Spacepage.com (similar to facebook.com) are particularly troubling in light of the importance of this site for its users as it has come to dominate human social life, with more than 500 million users across the globe. Furthermore, they actively prevented individual subscribers from downloading legally available movies and games, thus resulting in an obstruction to access legal media to further disseminate information and also preventing further interaction with their peers on the Internet through such sites. This denial and restriction of access results in an infringement of the individual’s right to information xviii, thus resulting in a violation of freedom of speech and expression of the individual subscriber and consumers.

i ii

(1989) 4 SCC 155 ¶ 27, Also see State of Bihar v. Harihar Prasad Debuka, AIR 1989 SC 1119 BLACK’S LAW DICTIONARY 1079 (7th ed. 1999)

iii

iv

See Barbara Van Schewick, Towards an Economic Framework for Network Neutrality Regulation, 5 J. ON TELECOMM. & HIGH TECH. L. 329 (2007). Also see Timothy Woo, Network Neutrality and Broadband Discrimination, 2 J. ON TELECOMM. & HIGH TECH. L. 141(2003) and Jon N. Peha, The Benefits and Risks of Mandating Network Neutrality and the Quest for a Balanced Policy, 1 INT. J. COMM., 644 (2007)
v vi

600 F. 3d 642 (D.C. Cir. 2010)

Trevor R. Roycroft, Economic Analysis and Network Neutrality: Separating Empirical Facts from Theoretical Fiction, available at http://net.educause.edu/ir/library/pdf/EPO0652.pdf (last visited 3rd Jan., 2011)
vii

Smt. Har Naraini Devi v. Union of India, WP(C) 2887/2008, http://courtnic.nic.in/dhcorder/dhc_case_status_list_new.asp (last visited Feb. 3, 2011)
viii ix x xi xii xiii

available

at

CONSUMER PROTECTION ACT, 1986, No. 68 of 1986

§ 6(c), CONSUMER PROTECTION ACT, 1986, No. 68 of 1986 (1995) 2 SCC 161: AIR 1995 SC 1236 Supra, ¶ 11 Union of India v. Motion Picture Association, (1990) 6 SCC 150: AIR 1999 SC 2334 Ibid Ministry of Information and Broadcasting v. Cricket Association of Bengal,(1995) 2 SCC 161, ¶ 24

xiv

xv

Moran Yemini, Mandated Network Neutrality and the First Amendment: Lessons from Turner and a New Approach, 13(1) VA. J. L. & TECH. 1 (2008)
xvi xvii xviii

Turner Broadcasting System Inc. v. F.C.C., 512 U.S. 622, 657 (1994) Reno, Attorney General v. American Civil Liberties Union, 521 US 844 (1997) State of U.P. v. Raj Narain, AIR 1975 SC 865

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