Updated: Feb 20, 2020
With the extended deadline of 2 March 2020 looming for mobile network carriers such as Vodacom and MTN to come to some sort of agreement with the Competition Commission as per its Data Service Market Inquiry Report regarding, among other things, the reduction in data pricing and a consistent industry-wide approach to the zero-rating of content from public benefit organisations and educational institutions, the topic of zero-rated data, access and content is top of mind more than ever.
Essentially, zero-rating in this context refers to when an Internet Service Provider (ISP) sets the cost of specific data to zero and that use of said data does not count towards any data cap or limit. Whilst on the face of it, the appeal and potential positive impact of allowing access to content at no cost to the end-user is clear, many problems exist in its feasibility, actual use, penetration, and impact on net neutrality.
On the most fundamental level, net neutrality refers to the idea or practice that internet service providers or carriers treat all internet traffic that flows through their networks the same, equal and without discrimination as to where it originates, what is consists of or its end destination.
Whilst still referencing the context of the Competition Commission’s Report, the obvious pitfall of carriers, being massive for profit entities, having the discretion on what data or which endpoints are to be zero-rated is that their biases towards their own content or clients will prevail.
Succinctly stated by the Electronic Freedom Foundation, “we don’t want ISPs acting as gatekeepers, making special deals with a few companies and inhibiting new competition, innovation, and expression”.
In the Competition Commission’s Report, the issue of net neutrality is raised only once by SOS Coalition (https://www.soscoalition.org.za/) and even in its submission to the Competition Commission the SOS Coalition briefly remarked that it has reservations regarding the potential impact of zero-rated data on net neutrality. This is the extent of the discussion regarding zero-rating and net neutrality.
Cementing the importance of net neutrality, the Body of European Regulators for Electronic Communications (BEREC) drafted guidelines on implementation of Regulation (EU) 2015/2120 of the European Parliament and of the Council of 25 November 2015 which defined, amongst other things, measures concerning open internet access.
In the above guidelines, BEREC stresses, referencing Regulation (EU) 2015/2120, that “any commercial practices of providers of internet access services, should not limit the exercise of those rights and thus circumvent provisions of this Regulation safeguarding open internet access”. BEREC further states that zero-rating may create “an economic incentive” to use or access content from one carrier over that of another purely based on the fact that said use or access is zero-rated and possibly not based on the quality of said use or content. The effect of which is that the “end-users’ choice is materially reduced in practice”.
It is important to note that the above is predominantly based on a European context and does not make provision for the prevailing economic inequalities present in the South African context. For this reason it will be vital to balance the need to maintain an open and unbiased Internet whilst promoting and facilitating access to said Internet to peoples or communities that have not been afforded or alternatively have been deprived of the opportunity to benefit from vast benefits that accompany greater access to the Internet.
Some questions worth considering when discussing zero-rated content or access may include:
Questions prevail such as who determines which content should be accessed? Who curates this content? Is this content actually universally accessible considering the language, cultural and economic diversity in South Africa? Is this content provided at a sufficient quality? What about audio and video? What about tunneling and Iframes?