Guest Post : The Law on Network Neutrality

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This is a guest post by Sudipto Sirkar a law student at Amity Law School who has an active interest in competition law. Sudipto recently participated in a moot court competition concerning issues of network neutrality law. He describes the legal arguments as well as the difficulty of making such arguments in the absence of direct legislation on network neutrality. For any feedback or comments he can be reached at sudipto14sep@yahoo.co.uk

I recently participated in a well known moot court competition on cyber and technology law, the problem for which this year was based on issues pertaining to network neutrality. To summarise the problem in a few words, a domestic Internet Service provider, in collusion with an international Internet service provider, had started providing services in the developing country (the economic condition of the country, especially the status of the telecommunication sector, similar to that of India) which over time was alleged to be derogatory in quality and in contravention to the principles of network neutrality. The service provider also later released a fair usage policy plan which severely limited free unlimited internet access (only 10 GB) despite consumers paying for an unlimited broadband internet access service.

As petitioners, we were not facing any difficulty in conclusively proving that the policies of the service provider were, without a doubt, in violation of the “agreed” principles of network neutrality. A bigger challenge we faced was trying to prove how this was legally wrong and why exactly was the service provider liable in the first place!! After all, even if assuming they had violated the principles of network neutrality, it is a fact (and a very irritating one at that for a lawyer/mooter) that there presently exists no specific legislation, rule, bye-law, etc. which governs the principles of network neutrality and their violation. (If one wishes to site the recent 2010 FCC order on network neutrality, it should be pointed out that the validity of the order is itself questionable in light of Comcast v. FCC. The rules shall be discussed in detail in a separate post). At any rate, there is no law in India to prevent the violation of the principles of network neutrality.

Now in situation such as the above, there is only one sensible path which any decent lawyer shall take in order to substantiate his case with law. And we, believing ourselves to be decent mooters, also decided to do the same. We decided to show the violation of the principles of network neutrality also led to a violation of the fundamental rights of various stakeholders in the internet broadband service.

What is however, surprising is that, as far as we are aware, no other team raised this issue before any bench at any point of time during the duration of the competition, including the teams who made it to the finals (one of the teams came close, but on a careful review one realised that they were taking a different approach to the issue and not one pertaining specifically to the violation of fundamental rights.)

When one realises that one has raised such a unique issue, one feels proud at having taken a path so different from those trodden by others. Or, atleast in my case also starts feeling apprehensive as to whether we raised a flawed contention before the court. Therefore, my intention in typing this post is not only to express by views regarding the law on network neutrality, but to also initiate a discussion on them and more specifically, on how a violation of the principles of network neutrality may result in a violation of the fundamental rights of citizens.

To post specifically, we contended that the violation of the principles of network neutrality resulting from the impugned acts of the respondents resulted in the violation of the fundamental right of websites, viz. the right to trade and occupation of all domestic websites and other start-ups [A], the right of the consumers to choose [B], and the citizens right to impart and receive information [C]. Below is a detailed description of our argument on the above issues, appropriately altered for this blog from the brief.

Copy of Arguments

Copy of Moot Court Problem

Related articles

• Verizon in challenge to FCC on ‘net neutrality’ (alternet.org)
• Here’s What’s Hiding Behind Verizon’s Net Neutrality Suit (nytimes.com)
• FCC net neutrality rules and efficiency (ft.com)
• Network Neutrality: The Freedom of Choice (csi110krodriguez.wordpress.com)