Vol.13 Issue 2 (2017)

Zero Rating As The Demon And The Saviour: Rethinking Net Neutrality And Freedom Of Expression For The Global South

Smarika Kumar

Zero-rated mobile applications like Internet. org have been characterised both as a supposed exterminator of the digital divide and as a violation of net neutrality in developing countries like India. This serves to illustrate how net neutrality and bridging digital divide have been posited as goals in contradiction to each other. How this seeming contradiction is relevant to developing a more nuanced understanding of the freedom of speech and expression and of net neutrality is the subject of the present paper. Accordingly, the paper is divided into three broad sections: I begin by analysing how far different conceptions of freedom of speech and expression respond to private forms of clamping of speech. To do this, I invoke Jack Balkin’s theory of democratic culture and contextualise it against the jurisprudence on freedom of expression in contexts of private discrimination in India. I then illustrate how a negative interpretation of net neutrality is able to successfully address some of these forms of private discrimination. Thereafter, the second section begins by tracing the forms of private discrimination, which negative net neutrality is unable to address by delineating the different kinds of (lack of) internet access. It then maps these factors hindering internet access against two important aspects of freedom of speech and expression, viz. the principle of media diversity and the goal of expanding citizens’ access to media infrastructure, some aspects of which can be termed structural media access. In the third section of this paper, I argue that the delinking of the principles of media diversity and structural media access in
law and policy debates hinders an inclusive response to all forms of private discrimination. Thereafter, through an examination of TRAI’s policy engagement with these issues, I argue that these principles need to be relinked for the development of a concept of net neutrality which comprehensively addresses the concerns of freedom of speech and expression for citizens in the global south.

Author

Smarika Kumar is a Ph.D. Candidate in Law at Humboldt University, Berlin.