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
(1989) 4 SCC 155
ii
¶ 27, Also see State of Bihar v. Harihar Prasad Debuka, AIR 1989 SC 1119
iii
BLACK’S LAW DICTIONARY 1079 (7th ed. 1999)
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
600 F. 3d 642 (D.C. Cir. 2010)
vi
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, available at
http://courtnic.nic.in/dhcorder/dhc_case_status_list_new.asp (last visited Feb. 3, 2011)
viii
CONSUMER PROTECTION ACT, 1986, No. 68 of 1986
ix
§ 6(c), CONSUMER PROTECTION ACT, 1986, No. 68 of 1986
x
(1995) 2 SCC 161: AIR 1995 SC 1236
xi
Supra, ¶ 11
xii
Union of India v. Motion Picture Association, (1990) 6 SCC 150: AIR 1999 SC 2334
xiii
Ibid
xiv
Ministry of Information and Broadcasting v. Cricket Association of Bengal,(1995) 2 SCC 161, ¶ 24
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
Turner Broadcasting System Inc. v. F.C.C., 512 U.S. 622, 657 (1994)
xvii
Reno, Attorney General v. American Civil Liberties Union, 521 US 844 (1997)
xviii
State of U.P. v. Raj Narain, AIR 1975 SC 865