Foundation of Media Professionals v. Union Territory of Jammu and Kashmir and Anr., Writ Petition Diary No. 10817 of 2020 : Another Opportunity to press for Right to Internet ?

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The Union Territory of Jammu and Kashmir (which before the Supreme Court is almost always represented by a Counsel for the Union of India) a few days ago filed an Affidavit expressly making a statement that the right to access the internet is not a fundamental right. To quote the text verbatim below:

“It is submitted that the right to access the internet is not a fundamental right and thus the type and breadth of access for exercising the right to freedom of speech and expression under Article 19(1)(a) and/or to carry on any trade or business under Article 19(1)(g) of the Constitution of India (CoI) through the medium of internet can be curtailed….”

The submission was made in the specific context of the action of the Union to not allow the speed of the internet to be more than that of a 2G cellular network. But my excitement at this statement is not a rage against any high handedness (which is presently sub-judice before the Court) by the administration but rather the opportunity which once again arises to argue a right to internet access !!

It appears to be a common misconception among the public that the Supreme Court has settled this question once and for all in Anuradha Bhasin v. Union of India and Ors., W. P. (Civil) 1031 of 2019. On the contrary however, it specifically observed that:

“28. None of the counsels have argued for declaring the right to access the internet as a fundamental right and therefore we are not expressing any view on the same. We are confining ourselves to declaring that the right to freedom of speech and expression under Article 19(1)(a), and the right to carry on any trade or business under 19(1)(g), using the medium of internet is constitutionally protected.”

Rather, what it went on to hold was that:

“…the freedom of speech and expression and the freedom to practice any profession or carry on any trade, business or occupation over the medium of internet enjoys constitutional protection under Article 19(1)(a) and Article 19(1)(g). The restriction upon such fundamental rights should be in consonance with the mandate under Article 19 (2) and (6) of the Constitution, inclusive of the test of proportionality.” (Emphasis added)

Yes, I agree that there is scope for a submission that the answer might be the same even if the issue was worded differently to specifically make submissions on the right to access the internet, but that doesn’t degrade the importance of the issue and its affect on policy matters such as Network Neutrality, concerning which passionate arguments from both sides of the fence tend to be based, at their core, on the right of access to the internet !! (The difference between the two sides is the interpretation of such a right and what is encompassed within it.)

The Court also itself recognised that it the issue could not be simply dismissed as irrelevant and required some serious consideration, if not on that day, then definitely someday later. Certain paragraphs in the first half of the Judgement are encouraging.:

“22. Now, we need to concern ourselves about the freedom of expression over the medium of internet. There is no gainsaying that in today’s world the internet stands as the most utilized and accessible medium for exchange of information. The revolution within the cyberspace has been phenomenal in the past decade, wherein the limitation of storage space and accessibility of print medium has been remedied by the usage of internet.

23. At this point it is important to note the argument of Mr. Vinton G. Cerf, one of the ‘fathers of the internet’. He argued that while the internet is very important, however, it cannot be elevated to the status of a human right. Technology, in his view, is an
enabler of rights and not a right in and of itself. He distinguishes between placing technology among the exalted category of other human rights, such as the freedom of conscience, equality etc. With great respect to his opinion, the prevalence and extent of internet proliferation cannot be undermined in one’s life.

24. Law and technology seldom mix like oil and water. There is a consistent criticism that the development of technology is not met by equivalent movement in the law. In this context, we need to note that the law should imbibe the technological development
and accordingly mould its rules so as to cater to the needs of society. Non recognition of technology within the sphere of law is only a disservice to the inevitable. In this light, the importance of internet cannot be underestimated, as from morning to night we are encapsulated within the cyberspace and our most basic activities are enabled by the use of internet.

25. We need to distinguish between the internet as a tool and the freedom of expression through the internet. There is no dispute that freedom of speech and expression includes the right to disseminate information to as wide a section of the population as is possible. The wider range of circulation of information or its greater impact cannot restrict the content of the right nor can it justify its denial. [refer to Secretary, Ministry of Information & Broadcasting Government of India v. Cricket Association of Bengal, (1995) 2 SCC 161; Shreya Singhal v. Union of India, (2015) 5 SCC 1].” (Emphasis added)

My only disgruntlement is with the first line of paragraph twenty five which has been quoted above, because I am firmly of the opinion that the internet cannot and should not be classified as a tool, but rather as a resource which is used by individuals and entities to create tools and services for mankind. I’ve focused on this here and here, and am now thinking of doing a separate piece altogether on the justification for such a classification.

Hopes can be belied of course, and with the present Covid – 19 situation in New Delhi, it’s best not to hazard a guess as to when the Court will start functioning on a regular schedule again, and even if it does, whether such full fledged arguments as I hope for will even actually take place. But then, no harm being optimistic. 🙂

Foundation of Media Professionals v. Union Territory of Jammu and Kashmir and Anr., Writ Petition Diary No. 10817 of 2020. [An Update]

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As per Bar and Bench, A three judge bench of the Supreme Court led by Justice NV Ramana today heard detailed submissions on behalf of all the parties and reserved orders on the batch of matters concerning internet access in Jammu and Kashmir.

On a reading of the LIVE updates provided by Bar & Bench, it appears that the petitioners chose to not specifically argue a right to internet access but rather toed a line similar to that in Anuradha Bhasin, by emphasizing that the “Right to education” and “Right to healthcare” was being hampered due to the slow internet speeds.

Facebook – Reliance Jio Tie up: Try, Try and Hope that you will Succeed.

(Business Today)

Initial informed rumours have finally culminated in an official announcement a few hours ago. Facebook will invest an amount of Rs. 43,574 crores for a 9.99 percent stake in Reliance Jio Platforms. The limited percentage is probably to prevent the investment from facing a regulatory hurdle before the C.C.I.

(Official video statement by Mukesh Ambani via Moneycontrol)

Financially, it makes sense for Reliance. It has for some time now been scouting for means to reduce Jio’s growing debt burden, and with the Reliance – Aramco investment deal definitely on hold for the foreseeable future as a consequence of the oil market debacle, it seems to have worked out fine for him (AS USUAL, if I may add). And an operations and commercial tie up with Facebook can only accelerate Jio’s growth and dominance in the country, and perhaps, over time even abroad (Africa is still one of the major markets with relatively low mobile and internet penetration).

Facebook, on the other hand, is relishing the opportunity to take another crack and penetrating the Indian market beyond social media (Remember the PR disaster that was “Free Basics” ?? – Our previous posts can be found here and here). And what better way to do it than to invest in the telecom company with officially the largest user base in India as well as revenue. Add to this the double icing on the cake which is the series of acquisitions made by Jio over the last three to four years with the obvious intent to create a formidable digital platform and the Promotor of the Company being without a doubt the biggest corporate influencer in the country. In fact, subject to correction, “Free Basics” seems to have been the first attempt by both the companies to try to work together and this is the second major attempt. Looks like Facebook has learnt a few lessons from its previous debacle.

While my previous concerns with Facebook’s attempts to penetrate the Indian market were primarily concerning network neutrality and the threat of information manipulation which accompanies Facebook everywhere in its “walled garden”esque operation style, a lot has happened since then. Typical of technology, issues concerning such investments have now jumped to a whole new dimension, where every big technology company is under scrutiny in multiple jurisdictions on competition and privacy concerns. In the past, the transaction probably shouldn’t have raised much concern for competition enforcers because Reliance would not be competing directly with Facebook. Today however, concerns are mounting on how tech companies are leveraging their control over data to push their own dominance not just in their original market, but also across vertical segments. And Facebook’s acquisition of both WhatsApp in 2014 and Instagram in 2012 has already created a Social Media behemoth which many worry about.

Even though C.C.I. has only recently begun to take nascent steps in examining Big Tech transactions, there is an additional dimension to the Reliance – Facebook tie up which definitely merits the C.C.I. taking the transaction seriously. My personal opinion is that this will definitely go through without any major hiccup, but how the two companies cooperate commercially is something to keep a watch on. Jio has today forayed into almost every form of digital media, including social media (Jio Chat). This coalescence which one sees in Jio’s acquisitions is however, not innovative. It is merely copying the playbook of a number of companies all across the planet, the most notable and successful examples being Alibaba and Tencent, of building entire ecosystems of digital media, communications and commerce with B2B and B2C connect. Google appears to have succeeded the best at this outside China, with a Google ID sign in now becoming a norm for most login transactions and a Google App available for almost every internet transaction you can think of. (On a side note, Google’s acquisition of FitBit has also raised similar concerns). Consequently, the lines between social media and other forms of entertainment have blurred over time. Facebook was simply late to the game, and is now playing catch up, and since it suffers from no dearth of cash, such investments help it to gain ground quickly, with a long term potential growth with Jio helping it to succeed where it has managed to only take a few tottering steps till now.

Information Manipulation: An Important Side Note of Network Neutrality

Freedom of Speech and prevention of a “walled garden” have been one of the prime arguments for network neutrality since the inception of the contest. Expanding on this argument, a side note to also be taken into consideration is the information manipulation which has come to be highlighted since the election of Donald Trump, where the particulars of the information “allowed” to be brought in front of you “help” you to make “your” decision accordingly.

Facebook can be an excellent example to help understand this argument for two reasons. Firstly, it came up with the extremely controversial (but still operational in some countries) FREE BASICS programme. Secondly, it is without a doubt one of the, if not THE most accessible websites on the internet (Google may be the only serious rival, but since Google in my opinion can today be considered a full fledged platform integrated over multiple websites as well as the Android OS rather than just the regular Google website, we’ll stay out of this debate for now and keep it simple.)

Facebook has of course been facing flak in the U.S. over its alleged contribution to last years presidential election, but what it actually more of a worry is the abuse of it’s service in communities outside the U.S., particularly Asia. We’ve partially discussed such issues before on this Blog (see here and here), but the latest example is that of Myanmar, where the rise of Anti-Rohingya sentiment seems to have coincided with a huge boom in the use of social media, a large chunk of which is attributable to Facebook itself. Why ?? Because in 2016, Facebook partnered with MPT, the State run telecom company, to give users access to its Free Basics Programme.

This is not to insinuate that Facebook is directly attempting to control the world and actively working with state regimes to incite hatred against minorities and in all fairness, the issue is excruciatingly complicated, but since Facebook dominates the Social Media space (along with Instagram and WhatsApp), the potential for abuse of its Free Basics programme becomes all the more potent. To quote from a recent article:

“Facebook is not directly responsible for violent conflict, of course, and viral
misinformation is hardly unique to its services. Before social media, there were email hoaxes and urban legends passed from person to person. But the speed of
Facebook’s growth in the developing world has made it an especially potent force
among first-time internet users, who may not be appropriately skeptical of what they see online.”

Network Neutrality: An Update

Yesterday (30.08.2017) will be marked as a watershed day by observers for Network Neutrality. The issue is being hotly contested in arguably the world’s most capitalistically advanced jurisdiction for telecom and the internet (U.S.A.) as well as the jurisdiction with potentially the biggest telecom and internet market, both by the number of users as well as revenue (India) and yesterday was an eventful day in both.

In India, the Telecom Regulatory Authority of India (T.R.A.I.) held and concluded an Open House Session in New Delhi on the issue of Network Neutrality. Unfortunately, being bed – ridden with a fracture, I was unable to attend it myself, but I am informed that all parties were “extremely vocal” with their opinions. T.R.A.I. is likely to publish its recommendations by October. On a side note, Certain telecom companies also complained against SIM-locked handsets coupled with a tariff plan and said that a limited access to certain applications through such devices was as good as a “walled – garden” and against Network Neutrality (No prizes for guessing who they’re talking about).

At the opposite end of the globe, yesterday was the last day to file comments on the Federal Communications Commission plan to deregulate broadband service and roll back net neutrality rules, and at least 21.9 million comments have been confirmed to have been received. Voting by the F.C.C. on the issue is not expected anytime soon, as the Commission is known to take it’s time with decisions after such commentary periods.

Here’s to waiting and watching and hoping for the best.

Online Competition and Offline Democracy

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Consumer Choice and Competition Law are devilishly heavy in terms of choice of literature, from the side of law as well as economics, and a collection of all books on the subject together can easily be used to create a specialised two floor (at least) library of its own. (which I would love, if I might add. :-))

The topic being so generic in phrase, it continues to evolve and grow as our own economy and society evolves and grows with every passing year, with the question of choice (and the use of Game Theory) continuously intriguing at every level of society and economy.

The next level of evolution of human society, after the invention of the modern internet (world wide web), has been its swift amoebic growth into the very fabric of our daily lives, and it is the consequence of this growth from a competition law perspective that Ariel Ezrachi and Maurice Stucke claim they look into and answer through their book Virtual Competition. They even go so far as to say in a blog post (and they may quite well be right) that the intertwining of A.I. and the internet into our daily lives has the ability to completely alter our thought process, including politically, and turn the definition of “Democracy” totally upside down.

Obviously, a self – confessed internet economy growth buff like me is more than eager to read the book (It’s available on Amazon India and not even very expensive, though the delivery charge sucks.) The Wall Street Journal already published a book review on it. And once I finish it, we should have one here as well. 🙂

Book Review: The Master Switch by Tim Wu.

(This is actually an old article which was originally published on the India Law and Technology Blog, where once upon a time I was a regular guest blogger. Unfortunately, sometime back all of them got wiped out. I often get messages about those posts, but sadly many of them were typed directly on the wordpress platform. Hence, no copy and as a consequence, permanently lost. Fortunately, while rummaging for something else, I chanced upon one of my earlier posts from the days when I still preferred to type a word draft first.)

At the very outset, I must confess, I have never been an absolute supporter of network neutrality and still am not. Another writer on this Blog has written before that he feels that the internet is inherently discriminatory, and I am inclined to agree with him. The writer of that post has summarized the reasons why the subject has become such a debatable issue among the learned, yet one can find that the subject has failed to convincingly grip the imagination and attention of the general pubic. And the various research papers and articles written and published in various journals of repute by the proponents of network neutrality are in the writers personal opinion, often too complex and long to enlighten and help an average reader to engage in an active debate on the topic. (After all, few individuals, except for law students or lawyers, will take the pains to read a seventy seven page article in the Harvard Journal of Law and Technology!!)

Notwithstanding what has been written above, THE MASTER SWITCH by Tim Wu is a welcome change to such articles. It is everything that should be asked of a book on a policy issue: Concise, simple, interesting so as to be able to grasp the attention of the reader, and most importantly, synchronized with itself, i.e., all the chapters within it. It also helps to better justify his stand as a proponent of network neutrality by using the “destruction of innovation” argument, which he failed to adequately explain in his papers and which has often been made into the weak link in the armour to be exploited by the those not in favour of network neutrality.

To summarise, he has used the Schumpetarian cycle of “destructive creation” to try and justify why there is a need to enact a Network Neutrality Legislation. He shows through historical examples how each new innovative medium of communication, from the Telegraph to the Television, has over time, though born as an innovative new and “free” medium to communicate, has slowly been centralized and been absorbed to be manipulated and controlled by the few large corporations who have eventually come to dominate the American industry and even Government policy. He then talks about how the Internet is a medium far more revolutionary then any of its communication predecessors and hence, any centralization of this medium shall, in fact result, in an unacceptable loss of freedom of expression.

After reading the book, one begins to understand that the reason a Network Neutrality Legislation needs to be enacted is not with the de jure intention of necessarily keeping the internet neutral, but with the de facto intention of actually controlling corporations from gaining too much control over the medium. A question which arises at this point is “why do we need a specific legislation? Why is the FTC (or, in India’s case, the CCI) not enough to control such an abuse of dominance, should it ever arise?” Wu answers this question, by again, citing historical examples on how these corporations have, through their clout, managed to subvert or walk around such Anti – Trust procedures through effective and efficient lobbying in the U.S. Congress. Despite its lack of effectiveness though, it is interesting to see how Anti – Trust law can act as an effective tool to against network discrimination.

If a complaint has to be raised against the book, it would be that for some reason it lacks any mention whatsoever of Facebook, which is quite surprising considering the status and clout which the site has achieved to influence individual opinion in our times. However, after reading, I must confess, I am far more convinced for the need for specific legislation on network neutrality than I was before.

As a post script, for all those interested in understanding the issue of network neutrality in simple language devoid of most technicalities, I recommend the following essay by Edward W. Felten:

http://dreadedmonkeygod.net/home/attachments/neutrality.pdf

T.R.A.I. Consultation Paper on Differential Pricing for Data Services (A.K.A.) What Has Now Become The Fight Over “Free Basics”. (Part – II).

Now coming to the the Scheme which has been grabbing all the attention in the mass media, which includes news and paid correspondence !! Frankly, don’t remember the last time I saw the kind of advertising and media blitzkrieg which Facebook has released on the Indian public to promote “Free Basics”. The past week has been a mixture of multiple full page advertisements in all major newspapers giving us an insight into “what Network Neutrality Activists Won’t Tell You”, “A First Step Towards Digital Equality” and “Support Ganesh: Support Digital Equality”. Some of Facebook’s tactics displayed in full the desperation of the omnipresent social networking website as well as the gullibility of the Indian (atleast online) populace. Mark Zuckerberg has himself become part of the PR overdrive in order to push support for what he genuinely seems to believe should be the next big leap in connectivity in India.

Now lets get two facts straight at the very outset. There is NO DIFFERENCE between “Free Basics” and “Internet,org”. “Internet.org” was a failure because it generated too much unexpected negative publicity for Facebook and the websites/organisations joining the initiative. This led to most of them opting out of the service, which is why Facebook decided to re-christen the programme and to push it through this time they decided to also launch the “Free basics – Digital Equality” campaign in order to generate some public support for the Scheme. So far, it has been an expensive campaign with little to show for it, except for a lot (allegedly 3.2 million as per facebook itself) of virtual verbatim blind click mails and signatures which Facebook claims is the “support” they have received from the Indian online community. [UPDATE: The T.R.A.I. has now stated that it considers these mails/signatures as a valueless opinion poll and are not an adequate response to the questions framed by it.] Secondly, it would be most unfair to not acknowledge the fact that “Free Basics” has the potential to be beneficial to the citizens of India, especially the unconnected parts of the country. However, as I outline below, the Scheme as it’s terms and conditions stand today, are more harmful for internet connectivity in the Country than the ancillary benefits which may accrue.

FACEBOOK CONTROLS EVERYTHING ON FREE BASICS/INTERNET.ORG

It is Facebook which acts as a guardian of the gate who will decide who enters the Free Basics platform and who doesn’t. Frankly, I am not comfortable with one entity exercising such overarching controls over a programme which it aims to spread itself throughout the country, and further throughout the world. Make no mistake, philanthropy aside, there are two major reasons why Facebook actively pursues “Internet.org/Free Basics”:- One, more eyeballs for the advertisements generated on its website as new users sign into Facebook. Second, for the shear amount of data it will generate for analysis through its user-base. Facebook is at the end of the day a business and while it is natural for a business to want to expand its customer base and generate higher revenues/profits, this cannot come at a cost of taking advantage of an individuals lack of literacy or understanding of how expansive the internet really is and attempt to keep him or her confined to select websites which have “conformed” to the standards set by Facebook. In simple terms, Facebook has no right to act as a hand holding teacher and “guide” people through a particular path. People must be allowed to understand that the internet is more than what they will see through “Free Basics” and choose for themselves what they wish to do or see on it, whether it be researching on new farming techniques or even be as voyeuristic as watching porn. Don’t get me wrong. Am sure the “Ganesh” in the Full page newspaper ads must have genuinely benefited, but did he have any idea that what he saw was just perhaps two percent of the accessible internet ??

Let me substantiate this with a real life example of what is happening in poorer parts of the world. Millions of Facebook users have no idea they’re using the internet !! A research survey, with a special focus on Indonesia and Nigeria where surveys were carried out, displays how people were not aware about the internet, but yet used to directly access Facebook, to the extent that in opinion polls a higher percentage would state that they had accessed Facebook, but a lower percentage would state that they had accessed the internet !! And do note, the article discussing the findings is dated 9th February, 2015 and states that the trends were noticed three years ago, when “Internet.org” was merely a concept in discussion and roll out had not even started. Imagine what internet connectivity could become with “Internet.org/Free Basics” implementation at its peak ?!?!

THE PROBLEM IS NOT PRESENT ABUSE. IT IS POTENTIAL FOR ABUSE

As of now, Facebook has stated that it has never rejected an Application which fulfill’s the qualifying parameters for developers on “Internet.org/Free Basics”. That’s fine for now, but what about the future?? Is Facebook willing to give a commitment that the “parameters” will always be broad and will never be to the detriment of a genuinely useful Application for the people?? No it won’t, not because it may or may not want to, but because it can’t !! The engineers at Facebook are not oracles to see the future, and what can be good or not got good or worthy or not worthy to be accessed by the Indian internet community cannot be subject to parameters laid down at a single given point of time, no matter how broad they may be. This will always be subject to the ever changing values of any given society and furthermore, to the ever important evolution of technology which in today’s furiously paced world is not just extremely hard, but downright impossible to predict. Anybody could come up with a technology or programme to give Facebook a run for its money. Can Facebook give an absolute guarantee in writing that such an Application/Programme would be allowed on Free basics?? I highly doubt it. (You can already see a potential for such abuse relating to an upstart Facebook rival “Tsu.co”)

One look at the Reliance Free Basics website for details on the websites which as of today on the platform shows that only thirty one websites/Applications are part of the Free services available under “Free Basics”. The only social networking websites, no guesses required here, are Facebook and Facebook Messenger. Over and above this, the only search portal was “Bing”, the only Jobs portal was “BabaJob” (I hadn’t even heard or read of them before seeing them here) and the only shopping website was “OLX”. The result is a potentially serious anti-competitive scenario over the internet resulting

THE INTERNET IS NOT A BUSINESS.

David Kirkpatrick, in a Linkedin Pulse Blog Post, is one of the few who has come out in defence of Facebook/Free Basics. He opined a marxist argument questioning in bold words “Do all these elite and generally upper-class and affluent Indian pundits, professors and anti-corporate activists have a better way to get many millions of less-privileged Indians onto the Internet?” and further goes on declare as follows:

“But in my view Free Basics is a fine example of what many call “doing well by doing good.” There is nothing wrong with being in business. There is nothing wrong with a business trying to acquire new customers. There is nothing wrong with offering something for free that you might charge for later. And however ruefully people elsewhere sometimes view it, there’s nothing wrong with Facebook being an American company operating successfully around the world.

Do all these elite and generally upper-class and affluent Indian pundits, professors and anti-corporate activists have a better way to get many millions of less-privileged Indians onto the Internet? If they don’t, their arguments are hollow. It’s hard to understand why Facebook shouldn’t be able to subsidize new customers’ entrance into the contemporary world of information power. For the poor, the opponents’ arguments add up to literally nothing. That’s what those people would get without Free Basics. But then, that’s what such people have had in India for millenia.

As I have already acknowledged, I too believe that Mark Zuckerberg is pursuing his endeavour with such zeal partly due to the obvious enormous potential advantage it can generate in favour of Facebook as well as a sense of idealism and an intent to do some good. But Kirkpatrick misses the point. THE INTERNET IS NOT A BUSINESS. It is a resource. You may use the internet to build a profitable business, but one cannot be allowed to make a business of the internet itself. The internet is a resource which is first and foremost, in the custody of the State which acts as a custodian of the resource on behalf of the citizens of that State. Which is why you have spectrum auctions. The Central Government, which is the custodian and owner of all spectrum in the Country, effectively leases bandwiths in different circles to different businesses which can harness the spectrum to provide internet services and/or use the internet itself. What Free Basics aims to do is to make a business out of the Internet itself. by allowing access to some applications while denying access to others (on technical grounds, if not more nefarious reasons), it effectively seeks to control what you consider as “The Internet”. Furthermore, it is important to note that Facebook itself has acknowledged that it is open to advertisement on the Free Basics platform to generate revenue in the future.

LACK OF CONNECTIVITY IN INDIA IS BECAUSE OF LACK OF INFRASTRUCTURE. NOT LACK OF FREE BASICS

The lack of connectivity in India is not because of lack of money. If a man or a woman can afford a smartphone, it’s safe to presume that he or she can also afford a 3G/4G pack along with it or be able to access wi-fi from some point, either at home or work or both. The problem of connectivity has more to with lack of infrastructure, both in rural and urban areas, and “Free Basics” does nothing to solve this. It does not help to build mobile towers or help in contributing additional spectrum for public use. All that it does is allow access to some websites for free. But what would be the point to allowing free access to websites on the internet if they cannot get the signal/bars to access the internet in the first place ?!?! If anything, it has the potential to add to the burden of the overused and under developed mobile connectivity services.

CONCLUSION

To conclude:

(R. Prasad)