A COMMENTARY ON THE NET-NEUTRALITY PROVISIONS OF THE DRAFT INTERNET INDUSTRY CODE OF PRACTICE

Net-neutrality, the foundation of an open internet seems to be a very topical telecommunications policy issue for several national governments. In the European Union (EU), the European Commission (EC) in April 2019 will present to the European Parliament, its report of a study aimed at collecting information about the implementation of the net-neutrality provisions of Regulation (EU) 2015/2120 (the EU Regulation) across the EU. In the US, the Federal Communications Commission (FCC) rolled back the Open Internet Order of 2015 which imposed net-neutrality requirements on internet access service providers (IASPs) and instead enacted the Restoring Internet Freedom Order 2018 which, inter alia imposed disclosure of network management practices on IASPs to ensure that they abide by open internet principles by reducing their incentives and ability to violate those principles.

Net-neutrality as a rule requires that IASPs do not discriminate in their treatment of content (or traffic) that they transmit. The policy justification for this no-discrimination rule is that the internet is a dumb network and any traffic passing through an IASP’s network should be treated on a first-come, first-served basis due to the open architectural nature of the internet. In Nigeria, the Nigerian Communications Commission (the Commission) appears to be in support net-neutrality and has accordingly responded by releasing a Draft Internet Industry Code of Practice (the Draft Code) that requires IASPs to comply with net-neutrality requirements once enacted. This commentary provides an analysis of the net-neutrality provisions of the Draft Code and is an excerpt of author’s forth-coming article tentatively titled “A Practical Assessment of Competition Regulation as a Viable Option for Protecting Net-Neutrality in Nigeria”.  

The Draft Code

The Draft Code was released by the Commission in 2017 and has the following objectives, protect the right of internet users to an open internet; provide clear guidelines to IASPs on the use of traffic management practices; outline the obligations of IASPs in relation to the protection of consumers’ personal data; outline the obligations of IASPs in the handling of offensive and potentially harmful content, and the protection of minors and vulnerable audiences online; ensure adequate safeguards are put in place by IASPs against unsolicited internet communications; and establish best practices for internet governance in Nigeria, in line with emerging issues and global trends.

Since its release in 2017, the Draft Code has undergone several revisions in conjunction with stakeholders.

Scope of the Draft Code

The Code will apply to IASPs and Internet Access Services within Nigeria. The Draft Code in Section 1.4 defines an IASP to be “Any entity licensed by the Nigerian Communications Commission, engaged in the provision of an Internet Access Service, irrespective of the network technology or terminal equipment used, or the license held”, while Internet Access Services is defined as “A publicly available electronic communications service, irrespective of the network technology or terminal equipment used, that provides access to data communications to or from Network Termination Points with IP addresses that are assigned through delegation from the Internet Assigned Numbers Authority”.

Under the Draft Code net-neutrality is deemed protected in Sections 2 – 3, of which a commentary is given below.

2 Right of Consumers to Open Internet Access

Section 2 prescribes measures designed to guarantee the rights of an end-user to an open internet, in particular an end-user’s right to have unrestricted and non-discriminatory access to lawful content, applications or services via his internet access services is expressly stated in this section. In accordance with this provision, the end-user is free to send and receive information and content online and use the appropriate terminal device of his choice without restriction from an IASP. This section also prescribes transparency obligations for IASPs when they engage in traffic management practices necessary for the efficient operation of the network.

3.1  Transparency

Section 3.1 seeks to impose specific transparency obligation on IASPs with respect to the performance, technical and commercial terms of its internet access service in a manner that is “sufficient for consumers and third-parties to make informed choices” regarding their uses of such services. Not only does this provision specify disclosure to consumers/end-users, it also requires that information disclosure be made to third-party content application providers (CAPs) who may require such technical information in seeking to create content on the open internet. This disclosure is required to be made in a clear, comprehensible and comprehensive manner in all service agreement with the IASP and on the IASP’s website. Finally, this section sets out the minimum information that must be disclosed by an IASP where it engages in any network management practices.

3.2 No discrimination

Section 3.2 seeks to impose a positive obligation on IASPs when providing internet access service, to treat all traffic equally, without discrimination, restriction or interference, independently of its sender or receiver, content, application or service, or terminal equipment. One of the basic tenets of net-neutrality is the obligation of IASPs to treat all data traffic equally irrespective of its origin or destination. An IASP that engages in discrimination, not only would be in breach of this provision, but also violates the right of an end-user to an open internet access as enshrined in Section 2 (a) and (c) of the Draft Code.

3.3 No blocking

Section 3.3 will bar IASPs from blocking lawful content on the internet, unless under condition of reasonable network management. The Draft Code in Section 1.4 defines reasonable network management to be “Network practices designed to enhance or protect quality of experience for end-users while complying with net-neutrality principles and guidelines”. On the other hand, the no-blocking rule applies to only lawful content, applications, services, or non-harmful devices and, this gives clear legal authority to IASPs to block unlawful content such as pornographic articles or content that infringes a trademark and/or copyright on the internet.

3.4 No throttling

Section will 3.4 bar IASPs from degrading or impairing lawful internet traffic unless under condition of reasonable network management. Throttling is defined by the Draft Code in Section 1.4 as “Network practices where data upload and download rates for specific services are internationally restricted”. The primary objective served by the no-throttling rule is to avoid situations where an IASP is able to circumvent the no-blocking rule through the degradation of end-users’ experience by effectively preventing the delivery of particular content and/or services over the internet.

3.5 No preferential data prioritization

Section 3.5 will bar IASPs from engaging in preferential data prioritization. The Draft Code in Section 1.4 defines preferential data prioritization as “the practice of granting preferential treatment to selected network data within the same service category based on the data’s origin, business agreements between IASPs and other entities, other commercial considerations, or any other consideration that do not qualify as reasonable network management”. This definition is drafted broadly in that it covers situations in which an IASP accepts monetary consideration from third-party CAPs to manage its network in a manner that favours the CAP’s content or services. This definition also forbids an IASP from managing its network in such a manner that favors the content, applications, services or devices of an affiliated entity.

3.6 Zero-Rating

The Draft Code in Section 1.4 defines zero-rating as “[w]hen an IASP applies the price of zero to the data traffic associated with a particular application or a class of applications (and the data does not count towards any data cap in place on the internet access service”. Under this provision, an IASP is not prohibited from offering zero-rated services, provided such services furthers the objectives of the Communications Act in Section 1 (c), and policy objectives of universal access contained in the National Information and Communications Technology Policy 2012 and the Nigeria ICT Roadmap 2017 - 2020, in accordance with the provisions of the Competition Practice Regulations 2007, and is done with the approval of the Commission. Absent the approval of the Commission which is required prior to an IASP commencing zero-rating, the rest of the requirements are not cumulative requirements as any of them can form the basis for the Commission’s approval.

3.7 Acceptable Traffic Management Practices

Section 3.7 sets out circumstances, that warrant the use of, and the specific characteristics of reasonable network management practices. In the light of this, it bears emphasis to note that reasonable network management is an exception to the no-blocking and no-throttling rules set out respectively in Sections 3.3 and 3.4 of the Draft Code to the extent that it is deemed “reasonable”. Thus, whether a traffic management practice is “reasonable” within the meaning of the Draft Code would depend to a great extent on whether the basis of its implementation satisfies the requirements set forth in Section 3.7. In other words, if a traffic management practice meets the criteria set out in Section 3.7, it would constitute reasonable network management and is acceptable to the Commission.

Conclusion

From the foregoing, it is evident that the Commission has done a thorough work as the net-neutrality provisions of the Draft Code are consistent with the global standard for net-neutrality rules adopted in other jurisdictions. However, the Draft Code is yet to have the force of law, and thus cannot be asserted at this time. Even if it comes into force, the Commission as the chief protector of telecoms consumers must ensure compliance in order to achieve the “right of internet users to an open internet” objective of the Draft Code. Understandably, the telecoms industry is in a state of constant evolution, thus the Commission must pay attention to both technical and market developments and if necessary make meaningful amendments to the net-neutrality provisions that reflect advances in technology and platforms.

The reality on ground is that should an open internet be preserved in Nigeria, net-neutrality obligations must exist. Accolades are in order for the Commission for recognizing this fact.

Article first published in the Businessday of 21 March 2019