by Smarika Kumar, Alternative Law Forum

Ever since rumours regarding the Indian launch of Internet.org app by Facebook in a tie-up with Reliance were confirmed, there has been lively speculation about whether the move is a violation of net neutrality. The app presents an opportunity for internet access (The stated objective ambitiously being internet access for the two thirds of the world not connected to the internet).But because it offers access to only limited services and content on the internet and not to others, it is also seen as a violation of net neutrality. This tension between two cherished principles viz., reducing digital divide versus net neutrality, throws up a paradoxical situation but also a unique opportunity, to rethink what aspects of speech and expression we include or should include in our constitutional framing of Freedom of Speech and Expression, and how.

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Net Neutrality as the Right to Equal Access to Speech

Net Neutrality, simply stated, is a system which allows for the equal access to all content on the internet by preventing selective blocking and faster access to selective content based on pay-by-price rule. In this manner, it provides equal opportunity to every speaker/writer on the internet —be it either Google or a small-time vlogger to be heard or viewed. Conversely, net neutrality also enables the provision of a diversity of content and platforms to the readers/listeners on the internet to obtain their information from.

It is this interest of the reader/listener to get information from a plethora of resources which has been formulated as an aspect of Article 19(1)(a)’s Right to Freedom of Speech and Expression—the right to pluralism and diversity of information received. Therefore Justice Mathew of the Supreme Court in the 1972 Bennett Coleman judgment, albeit in a minority opinion, states that the right of the community to receive information is to be accounted for when deciding the contours of the Right to Freedom of Speech and Expression in terms of the distribution of newsprint resources amongst various newspapers (which act like speakers or writers). Consequently, he endorses the community’s right to read from a variety of newspapers over the right of a few newspapers to circulate unlimited volume—a situation which when transposed to the internet could be thought of as akin to only a few large internet content providers like Google or Facebook using a major portion of the bandwidth to make themselves reachable to the internet user.

Two decades later, the spirit pervading this minority opinion viz.,of pluralism as an essential aspect of media got an endorsement by the Supreme Court in the Cricket Association of Bengal case in 1995. Speaking in context of television broadcasts, Justice B.P. Jeevan Reddy sees the ability of citizens to “have the benefit of plurality of views and a range of opinions on all public issues,” as a right under Article 19(1)(a). He further states that such pluralism “cannot be provided by a medium controlled by a monopoly— whether the monopoly is of the State or any other individual, group or Organisation.”

If diversity and pluralism of information received is also seen as a part of Article 19(1)(a) in the new medium of the internet,then net neutrality in essence presents a violation of the Article on this count. Since in such case, the Right to Freedom of Speech and Expression will also mean the right to receive information from a plurality of sources, internet users can potentially make out a case for the violation of net neutrality (and the launch of Internet.org) also being a violation of Article 19(1)(a) under the Constitution.

Reducing Digital Divide as Right to Access Information

But if only things were that simple. There is actually more subtlety to the case because Internet.org also claims to enhance access to the internet media for people on the wrong side of the digital divide. Is access to the internet, or access to media a claim covered by the Right to Freedom of Speech and Expression under our Constitution?

The majority opinion in Bennett Coleman case considers the fact that in the precedent 1961 case of Sakal Newspapers, two readers of the newspaper had petitioned against the Government regulation which was reducing access to the newspaper by fixing minimum prices for newspapers based on the number of pages they carried. Such fixation of minimum price would have made one of the cheaper newspapers—Sakal, more costly and other newspapers as costly for the reader. How is then the reader supposed to access any newspaper at all? The Court notably points out in the Sakal judgment, “Though the prices of newspapers appear to be on the low side it is a fact that even so many people find it difficult to pay that small price.” Based on this reasoning, the Court holds that raising the price of newspapers even by a small amount would result in people not accessing newspapers. And this situation would be in violation of Article 19(1)(a).

This is also the story of those living in the shadow of the digital divide, whereby Internet.org becomes the Sakal newspaper of the digital age. Going by such thinking, one could make out an argument for the right to access internet under Article 19(1)(a). If that is the case however, then contrary to being in violation of Article 19(1)(a), Internet.org can also be seen as an utter vindication of the same!

Why interrogate our free speech traditions?

From the consumer viewpoint, the question then begins to boil down to this: What is more important? : Pay a little extra in absence of Internet.org and like-services and have equal access to a diversity of internet content? Or pay for a specific mobile connection (in this case, Reliance) and have free access to the limited internet content offered by Internet.org?

It is a choice with probably widely different perceptions for different sets of people. For people that find the whole internet service unaffordable, it probably makes sense. Why not avail the free, albeit partial internet being offered by Internet.org? It is not as if the entire internet can be afforded after all. There is of course the argument that the State should provide free internet access for all—but that is all so far away…some ideal dream, whereas Internet.org is free and now and here!

On the other hand, for people who see the internet as ano-strings global communications medium, the gatekeeping of the net-neutrality-violating Internet.org is a dangerous trend which ruins (if-the-somewhat-utopian) idea of “the internet as we know it”, viz., a free, egalitarian internet. Violation of net neutrality is then seen as unequal treatment of content creators/writers/speakers on the internet whereby those which can pay can make their voices heard over those of others.

In terms of our fundamental rights, this situation presented by Internet.org begins to question our ideas about what it means to have the Right to Freedom of Speech and Expression under Article 19(1)(a). What has, or should have, more priority in our formulation of the freedom of speech?: Access to the medium for the citizen, or plurality of content on the medium? Or prioritisation of the rights of the consumers of content, or that of the rights of the creators of content on the internet? What if a single user is both the creator and consumer of content on the internet? What are the implications then? Or should movement towards any such prioritisation of diversity over access, or trade-offs between the rights of content creator over rights of content consumers be avoided altogether; and we should be thinking of completely new ways of formulating rights under freedom of speech?

These are not questions with obvious answers, and that is why we need a serious discussion as a democracy about how we want to think about Article 19(1)(a) and the possibilities of free speech and expression that it offers. The launch of Internet.org has provided us a unique opening to actually interrogate the Constitution and through it, the values we want to enforce and reinforce in our everyday communications. Let’s grab this?

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Smarika Kumar works as a researcher with Alternative Law Forum, Bangalore on issues concerning technology and law in context of media ownership and infrastructure, access to media, and internet governance.

Photo via Internet.org