Net neutrality in America is threatened – what does that mean for South Africa?

By David Jenkin

What has been the most recent development in the net neutrality debate in South Africa, and how should we expect the discussion to unfold going forward?

The most recent development is the publication of the Comprehensive ICT Policy White Paper on 3 October 2016. For the first time it sets out an explicit policy position in respect of net neutrality. And it’s that all internet traffic must be treated equally without discrimination, restriction or interference. And that would be subject to transparent traffic management processes by ISPs and telcos.

Underpinning it all is a consumer issue, and what you’re trying to ensure is unfettered consumer choice which is why you allow the traffic management, because, for example, you may want a specific business capped account while I may want an uncapped account for my children to abuse, so transparent network management doesn’t amount to a breach of net neutrality. 

Now, we have an admirable policy statement that doesn’t mean much until implemented. So what the White Paper says is that the regulator, which is currently ICASA, will need to hold an inquiry into whether any regulation is required to entrench the policy position. The regulator will then make recommendations to the Minister on whether there needs to be amendments to legislation and whether steps should be taken to better define transparent fair network management in order to protect consumers.

This process is probably not a priority and will take some time to finalise. 

Do we currently have any law on net neutrality in South Africa?

Not specifically but at the end of the day a lot of it is a competition law issue. So does this zero-rating*, or does this prioritisation or de-prioritisation amount to unfair competition? That is the avenue you would need to pursue at this stage. The White Paper reflects this competition aspect, calling for an assessment of whether any unfair discriminatory practices are likely to be used in future and for a review of horizontal and vertical integration and concentration across the Internet value chain.

Net neutrality has always been a particularly American phenomenon just because of the way their market is set up. Obviously what happens in America given the plethora of large networks and content that is there does impact on what happens in the rest of the world. If you’re trying to access an American service and they’ve got rules around prioritisation that’s going to impact you.

But I don’t think it will necessarily impact us on a country level, particularly given the newness of this policy. I do really see it as mostly a large commercial debate between incumbent operators looking to protect revenue streams for as long as possible.

Is the concern legitimate that governments could use a lack of net neutrality to arbitrarily censor the internet?

Very interesting question … I’m not sure about “arbitrarily”. I think all governments seek to control the flow of information that used to be through the print media and now increasingly through the Internet. And in South Africa you see that already through the Films and Publications Amendment Bill and, in the recently published Cybercrime and Cybersecurity Bill, there’s a new chapter on malicious and harmful communications which raises very complex issues around freedom of speech.

While ostensibly that’s aimed at dealing with cyberbullying and revenge porn and things of that nature, it’s a hop, skip and a jump, if you’re starting to make carve-outs from freedom of expression, from there to criticism of politicians et cetera, et cetera.

There is also huge debate around the Prevention and Combating of Hate Crimes and Hate Speech Bill at the moment – so there’s a real focus on trying to control the message. Ostensibly because of what’s happening on social media, we seem to be trying to expand this concept of hate speech as unprotected speech to include harmful speech, and that’s going to be very interesting as it plays out in the balancing of different rights against each other.

I think the Department of Communications is quite clear that it has an agenda around control over Internet content. So is net neutrality part of that? Personally, I prefer to keep them separate, one is a technical concept, the other is essentially political interference through law and regulation. But the underlying concept could essentially be analogous in terms of controlling what content we can and cannot access.

Interestingly the White Paper ties net neutrality directly to freedom of expression online.

Do you believe that net neutrality as a concept is something that should be protected?

Yes. It’s one of the underlying principles that informs the very nature of the internet, and, therefore, absolutely it should be protected. The balkanisation of the internet, the division between haves and have-nots, who can afford the right connection and who can’t – it doesn’t really tie in with the egalitarian principles on which the Internet operates. From a socio-economic perspective, we have to ensure that broadband and Internet access underpin development.

The White Paper explicitly recognises this.

In a world without any net neutrality, how different might the web be in South Africa?

It’s a tricky question because do we actually have net neutrality in South Africa? In policy, we do. But, in practice, there are examples of zero-rating of access to educational or public benefit content as well as to commercial video-on-demand services. What is the difference between these two examples and should they be treated differently? Zero-rating, in particular, raises complex issues. Again, I would just fall back on competition law if there are specific concerns.

I think net neutrality is also important if we look at the Indian example with Free Basics. Their primary reason for not allowing Facebook to provide free access services is that this crowds out local development.

And that’s also a very important thing you’ve got to remember: if we want the next Facebook or Google or next big thing to come out of South Africa, then we’ve got to create space and be wary of allowing multinationals and incumbents to leverage their market power with offers to zero-rate access to selected content.

For more information, visit ispa.org.za.

*Zero-rating (also called toll-free data or sponsored data) is the practice of network operators and service providers not charging customers for data used by specific applications or internet services through their network.

*Image courtesy of freepress.net under ShareAlike 2.0 Generic license