Article 19 of the Universal Declaration of Human Rights sets the framework for this discussion by establishing the right to, “hold opinions without interference and to seek, receive, and impart information and ideas through any media regardless of frontiers.” This Article has typically been interpreted as the freedom of expression in conjunction with the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social, and Cultural Rights. With the established right to communicate effectively, it then becomes a concern of whether everyone should have the available tools to do so. Citizens in countries without access to the Internet have their communication stifled without the ability to access or share opinions or work on the same magnitude as individuals in wealthier nations. Furthermore, as online sources become a dominant form of news, people without Internet access are at a serious disadvantage.
In July 2016, the U.N. established Internet access as a human right through a resolution declaring the importance of “applying a comprehensive human-rights based approach when providing and expanding access to the Internet and for the Internet to be open, accessible, and nurtured.” The resolution calls upon countries to provide citizens with access to the Internet and condemns any attempt to block access. Unfortunately for those without Internet, the resolution is not legally enforceable and can only increase awareness to the issue. Many countries may still push back against this resolution because it requires them to construct infrastructure for information systems. Therefore, the outlook for citizens in countries without access still remains unclear.
In an effort to push this issue forward, the private sector has attempted to fill the Internet access gap. Facebook’s CEO, Mark Zuckerberg, has weighed in on this issue. In a post, he stated, “The internet is one of the most powerful tools for economic and social progress. It gives people access to jobs, knowledge and opportunities. It gives voice to the voiceless in our society, and it connects people with vital resources for health and education.” The company has taken an approach towards this problem by providing a free Internet service called Free Basics.
II. Facebook’s Free Basics as a means towards achieving this ideal?
Free Basics--a program launched via Facebook’s Internet.org in 2015--is an initiative propelled by the social media giant that “aims to connect 2/3 of the world that is not yet connected to the internet.” Specifically, Free Basics is a service that allows people to access certain Internet Services for free on mobile, that is, without incurring data usage charges. In other words, it is a zero-ratings program.
A. The Stakeholder Perspective: Facebook’s Stance and India’s Response
When Mark Zuckerberg introduced Free Basics to India as a way to provide web access to the developing world, many Indians--citizens and companies alike--vehemently opposed the initiative. Many Indian internet activists viewed it more as an aggressive, public-relations ploy than anything else. In their minds: Although purporting to be a free internet service for the poor, Free Basics in reality constituted a watered-down version of Facebook with some other services tacked on as an afterthought (e.g., weather reports and job listings.) “I felt betrayed--not only betrayed but upset and angry,” Osama Manzar, director of India’s Digital Empowerment Foundation, said. “[Zuckerberg] said we’re going to solve the problem with access and bandwidth. But Facebook is not the Internet.”
From Zuckerberg’s perspective, launching his sweeping Internet.org initiative was a way to provide 4 billion people in the developing world with Internet access, which he views as a basic human right. In the midst of a relatively aggressive campaign (i.e., billboard ads, mass text messages, newspaper ads, etc.) that called for popular support for the program, Zuckerberg wrote several op-eds in some of India’s most prominent news publications. For instance, in the Times of India, Zuckerberg made the case that Free Basics actually protects net neutrality. In his own words:
Instead of wanting to give people access to some basic internet services for free, critics of the program continue to spread false claims – even if that means leaving behind a billion people. Instead of recognizing the fact that Free Basics is opening up the whole internet, they continue to claim – falsely – that this will make the internet more like a walled garden. Instead of welcoming Free Basics as an open platform that will partner with any telco, and allows any developer to offer services to people for free, they claim – falsely – that this will give people less choice. Instead of recognizing that Free Basics fully respects net neutrality, they claim – falsely – the exact opposite.
Nikhil Pahwa, a leading Internet activist in India and co-founder of SaveTheInternet, wrote a counter-response, posing the following key question: “Why has Facebook chosen the current model for Free Basics, which gives users a selection of around a hundred sites . . . while rejecting the option of giving the poor free access to the open, plural and diverse web?” Indeed, this seemed to be the operating concern for many internet activists at the time, that Facebook through Free Basics was attempting to corner out the ad market and take control of services and information in third-world countries. After all, India has 130 million Facebook users, second only to the United States--the market potential is therefore objectively hard to deny.
“All access is priority,” asserted Pahwa in his response. “Why hasn’t Facebook chosen the options that do not violate Net Neutrality?” It is important to note that Facebook, in the course of its partnership with Indian telecom giant Reliance Communications, would still remain the arbiter of what websites and apps would be included in Free Basics. These two opposing perspectives espoused by Zuckerberg and Pahwa--though concurrently claiming to support Net Neutrality principles--illustrate the fact that the Free Basics problem was there to stay no matter which way one sliced it.
Though, perhaps there is a middle ground. “The thing people forget about Free Basics is that it’s intended to be a temporary transition for people to give them a taste of the Internet and sign up. It’s a marketing program for the carrier in some sense,” said David Kirkpatrick, author of “The Facebook Effect.” But he added, “The idea that it’s some kind of alternative Internet that’s a discriminatory gesture to the poor is is the prevailing view among the Indian intelligentsia. It’s fundamentally misunderstood.” Indeed, Facebook acknowledged that it considered billing Free Basics as a loss-leader. As the company explained during its advocacy to the Telecom Regulatory Authority of India (“TRAI”):
Most [Free Basics users] upgrade to paid access [and] the majority of Free Basics users pay to access Internet content outside of Free Basics in their first month of use, and the number keeps rising over time. These arrangements therefore act as an on-ramp to the Internet. It is this on-ramp that Facebook has an interest in seeing flourish.
This lends some credence to the idea that Facebook partnering with ISPs to provide Free Basics would result in preferential and selective access to a set of app developers and services, which would ultimately undermine the main thrust of Net Neutrality. The following questions naturally arise: Should Internet access--largely viewed as access to a public utility--serve as a vessel for a private company’s marketing program? Or, should regulators allow for minor marketing efforts to be swept under the rug in the short-term if the transition via Free Basics yields a net positive in the long run (i.e., the majority of Free Basics users ultimately migrating to unlimited, but not free, usage options)?
In the midst of such a heady atmosphere, TRAI took little time to weigh in on the controversy. Implicitly skeptical of Facebook’s on-ramp argument, TRAI ruled against discriminatory access to data services on February 8th, 2016, and put its full regulatory weight behind protecting broad Net Neutrality principles--effectively wiping out Facebook’s Free Basics program in one of the world’s largest Internet markets.
B. TRAI’s Grounds for Making its Decision
When it ruled against discriminatory access to data services, TRAI did not expressly allude to Free Basics. However, it is widely speculated that the public outcry resulting from the Free Basics debate served as a major impetus to enact such rules. In its decision, TRAI said it had “received a large number of responses” to a consultation paper on differential pricing that was released the previous December. Notably, the regulator then added that the “[m]ajority of individual comments received did not address specific questions that were raised in the consultation paper.” Therefore, the 11 million-odd template responses Facebook claimed its users had sent to TRAI did not count for much. As one lawyer wonders: “to what extent [was] TRAI’s Decision . . . driven by politics--and perhaps [by] unfavorable optics that Facebook was unable to sufficiently rebut--rather than objective legal reasoning. Skepticism about the altruistic motive behind Free Basics is reflected in the press coverage of the Decision, as are undertones of perceived imperialistic hubris.”
That being said, TRAI bypassed mentioning such sociopolitical arguments and instead asserted that the main object of its concerns was the protection of Net Neutrality principles in India. In TRAI’s view, allowing one to charge differentially for data could potentially damage the entire “architecture of the internet.” TRAI was mainly concerned with maintaining a level playing field and fair competition--especially since Airtel is India’s largest telecom company and among the world’s largest, and Reliance Communications (Facebook’s Free Basics partner in India) planned on partnering with Reliance Jio, India’s upcoming 4G telecom service that cost about $14 billion to set up. In the words of the TRAI:
It is argued that this will create an uneven playing field among content providers and service providers—large, well-established content providers and service providers or those that have the benefit of large networks will find themselves in a much stronger bargaining position as compared to new or smaller businesses. This may create significant entry barriers and thus harm competition and innovation. This poses an even greater concern in cases where there might be a conflict of interest in the service provider’s role as a service provider as well as a participant in a vertical market where it acts in competition with other content providers. New and smaller service providers will face crucial challenges in view of the significant market power enjoyed by bigger service providers and content providers.
TRAI also expressed concern over the notion that zero-rating pricing models would segment the market for Internet usage, which would ultimately hurt the positive network effect benefits that arise from the universal connectedness of the traditional internet. Another important, though arguably paternalistic concern centered on “information asymmetry”--that Free Basic partners would take advantage of new users, many of whom have not used the Internet and do not know enough about it to make informed decisions online. “[I]nternet access is not a ‘search good’ but rather an ‘experience good’ which can be understood properly only after being used. Thus . . . many consumers may not be in a position to understand the information being presented to them,” reasoned TRAI when justifying its decision.
There is certainly an argument for supporting the idea that TRAI’s decision to mandate expansive Net Neutrality principles was based on the fact that Facebook, through Free Basics, would assert control and favor some content over others based on something other than purely technical/bandwidth related-concerns. In any case, when viewed in terms of achieving universal Web access, the Free Basics program was a failed attempt as far as India was concerned. What, then, is the most effective means towards achieving the positive human right to universal access to the Open Web?
III. Universal Internet Access via Zero-Ratings Pricing
A. Benefits of Internet Access
Facebook initially offered Free Basics as a way to finally connect the entire world and provide Internet service to the remaining pockets still without access. Mark Zuckerberg views the program as an agent for change by giving citizens a voice. Over the past decade, Facebook has been largely influential to political development around the world. Whether a user is a politician, celebrity, or critic, everyone can make his or her opinion known to the world. Consequently, this tool creates an informed and engaged public. The platform fosters the dissemination of articles and posts by allowing users to share a copy to a friend, family member, or followers. As a result, every news article, video, or blog post can become a center for public discussion. This discourse could also help to bridge the cultural gap as people from all over the globe can share their experiences and knowledge.
Other than social benefits, Internet access has been shown to provide economic advantages for developing countries. Joshua Meltzer, at the Brookings Institute, explained how the Internet can be a platform for international trade because it provides an opportunity for small to medium businesses in developing countries to participate. Robert Atkinson, from Information Technology and Innovation, substantiated this argument by pointing to research that shows “Internet penetration is positively correlated, positively causally related to exports.” Developing countries are especially affected by Internet access because small businesses typically have trouble “identifying customers, acquiring information in foreign markets, [and] setting up relationships with distributors." Therefore, Free Basics could arguably resolve these issues by providing a an established platform with a connection to the rest of the globe. In a blog post on the Times of India, Mark Zuckerberg described the platform that offers “education, healthcare, jobs and communication that people can use without paying for data.” Furthermore, he claimed it will provide citizens with economic and social opportunities. Despite Zuckerberg’s claims, there are some serious criticisms of the platform.
B. Detriments of Internet Access
The primary criticism for Free Basics revolves around Facebook’s central role in the platform. The Electronic Frontier Foundation pointed out that there is no, “technical restriction that prevents the company from monitoring and recording the traffic of Free Basics users.” Consequently, there is no guarantee for Free Basics’ users privacy. In addition, the problem of censorship arises. Facebook can curate the user’s Internet experience by selecting specific sites, articles, and advertisements. The pressure to censor or promote certain material may even be government mandated. In effect, user’s access to information would be limited, which curtails the benefit of having an informed and engaged public. Thus, critics claim the platform as not truly “free” since it comes at the cost of the user’s privacy and censorship.
IV. Moving Forward
Given the above, one fact is resoundingly clear: Universal access to the Internet is a vital goal that warrants global attention. Regulators all over the world, tasked with having to grapple with this difficult issue, should strive for a happy medium. Therefore, the best solution is not necessarily a blanket ban on selective access to data services, nor is it a total disregard for Net Neutrality principles. Although flawed in his methodology, Zuckerberg was perhaps right on at least one point: “[N]et neutrality and universal connectivity[] can and must coexist.”
When construed against other regions of the world and their net neutrality policies, the E.U. appears to be the most balanced and the closest towards fostering a viable coexistence between network neutrality and universal connectivity. Therefore, should a similar situation ever arise in the future (and it is hard to imagine it will not), maybe it would behoove telecom regulators to tear a page out of the European Union’s book. In November 2015, the E.U. enacted its new Net Neutrality Regulation. In the summer of 2016, the E.U. further fleshed out the statutory language of the Regulation in its Guidelines (drafted by BEREC, an important E.U. regulatory body).
In the E.U., zero-ratings projects are assessed on a case-by-case basis, but done in such a way that Net Neutrality principles are continually safeguarded. To elaborate, Paragraph 43-46 of the Guidelines indicates that, instead of a wholesale ban on zero-rating, a “case-by-case” approach is to be implemented. In doing so, the matter is left to the telecom regulators to assess each zero-rating deal individually and “frown on anything that steers people away from competitive services.” The Guidelines specifically stipulate that telecom regulators are to assess whether the zero-rating deal is underpinned by commercial interests and whether the commercial practices that stem from the zero-rating deal in question would “limit the exercise of the end-users’ rights granted under Article 3(1)” of the Regulation. If so, the deal is denied.
The beauty in this regulatory arrangement is that benign zero-ratings projects such as Wikipedia Zero, which are arguably not as fueled by commercial interests, are still able to work towards achieving the union of network neutrality and universal connectivity. Applied to Free Basics in India, a case-by-case approach would allow TRIA to at least apply heightened scrutiny when assessing Free Basics and other similar projects, all of which could very well be guised as tools for free Internet access, but in reality run afoul with net neutrality rules.
To put it simply, there is a dire need for regulators to come up with a scheme that encourages genuine universal access of the Open Web while protecting against projects that espouse commercial undertones and reek of digital colonialism. After all, at the end of the day, Facebook is first and foremost a profit-seeking company--not a traditional ISP, government agency, or nonprofit. That fact alone should invite heightened scrutiny, but perhaps not lead to an automatic denial at the front door.
For further reading:
- "Facebook's Free Basics: More Open, Better Security, but Still a Walled Garden" (Electronic Frontier Foundation)
- "Free Basics protects net neutrality" (Mark Zuckerberg in the Times of India)
- "It's a battle for Internet Freedom" (A response to Zuckerberg by Nikhil Pahwa, a prominent Net Neutrality Activist in India; Times of India)
- "What Facebook won't tell you about Free Basics" (SaveTheInternet)
- "Lessons from Facebook's Fumble in India" (Harvard Business Review)
- "Was India right in banning Facebook's Free basics?" (Quartz, originally published by the Center for Democracy & Technology)
- "Facebook gears up for Express Wifi launch in India" (Mashable)