Net Neutrality Principle: The Chilean Experience

-- By RaulMazzarella; March 13, 2020

What is Net Neutrality

The term net neutrality was first used by law professor of Columbia University Tim Wu in his 2003 paper Network Neutrality, Broadband Discrimination. Professor Wu argues that “network neutrality is best defined as a network design principle. The idea is that a maximally useful public information network aspires to treat all content, sites, and platforms equally. This allows the network to carry every form of information and support every kind of application. The principle suggests that information networks are often more valuable when they are less specialized when they are a platform for multiple uses, present, and future”. Nevertheless, Wu was not the first person who talked about this issue and concept. Indeed, other academics such as Lawrence Lessig and Mark Lemley, without referring directly to the concept of "Net Neutrality", were already writing about the challenges of the open Internet.

After Professor Wu’s paper, there have been other definitions and discussions regarding whether Internet traffic management can be considered as illegitimate discrimination of traffic and contrary to the open Internet. Nevertheless, I think that the concept adopted by the Body of European Regulators for Electronic Communications (“BEREC”) is the most comprehensive. This concept states that Net Neutrality “is the principle that all electronic communication passing through a network is treated equally. That all communication is treated equally means that it is treated independently of (i) content, (ii) application, (iii) service, (iv) device, (v) sender address, and (vi) receiver address. Sender and receiver address implies that the treatment is independent of end-user and content/application/service provider”.

Currently, there is an open debate regarding whether Net Neutrality is capable to increase competition between ISPs, if it disincentivizes blockage and degradation of non-favored content and applications, if is capable of stoping the charging to content and applications providers for prioritized data delivery, among other discussed topics.

The Chilean Approach

On 26 August 2010, Law No. 20,453 of the Republic of Chile was published (the “Net Neutrality Law”). From that day on, Chile officially became the first country in the world to enact a law enshrining the principle of Net Neutrality, setting a framework of transparency and rights for Internet users.

The Net Neutrality Law was brought about after a concerted lobbying effort by the pro-neutrality group Neutralidad SI (“Neutrality Yes!”). Neutralidad Si claimed that broadband operators were persistently restricting peer-to-peer traffic on their networks.

One of the main goals of the Net Neutrality Law was to guarantee the right of any Internet user to use, send, receive or offer any content, application or legal service through the Internet, without arbitrary blocks or discrimination.

According to this Law, ISPs and the operators that own and administrate the backbone structure of the Internet service, shall not be permitted to make any discrimination and differentiation regarding the information that runs over their equipment and/or network infrastructure. In other words, according to this Law, users should be able to access any web content they wish and use any applications they choose, without restrictions or limitations imposed by the ISPs and/or the owners of the network infrastructure.

Specifically, in order to accomplish the goal of protecting and enforcing the Net Neutrality principle, the Net Neutrality Law creates several new prohibitions and obligations applicable to ISPs and/or the owners of the network infrastructure:

• They shall not block, interfere, discriminate, hinder or restrict, on an arbitrary manner, the right of the Internet users to use, send, receive or offer any content, application or service provided through the Internet, as well as any other kind of activity or authorized use performed through the web (they shall only be permitted to do the foregoing by express request from the user);

• They shall not affect free competition during the performance of traffic management measures and web administration; and

• They shall not limit the user's right to incorporate or use any class of equipment, device, or gadget provided that they do not harm the net or the quality of the service.

Accordingly, Chilean law has taken an intermediate position in this matter, staying away from extreme positions, since, although the Net Neutrality Law recognizes and expressly enshrines the Net Neutrality principle, it also allows in certain cases the ISPs and other relevant operators to manage the use of the network (when such management is not discriminatory or arbitrary).

Finally, the Net Neutrality Law has established a clear and expeditious procedure for Internet users so they can enforce their rights embodied by this standard and claim against cases of discriminatory network management.

The effects on the Net Neutrality Law in Chile

Research shows that the Net Neutrality Law has effectively diminished connection costs, has increased the number of users and has increased the competition within the Chilean internet market. However, there have been serious critics to the regulator, the Undersecretary of Telecommunications, due to the alleged lack of enforcement of the Net Neutrality Law since some ISPs would be still degrading the connection of users in some situations according to some institutions such as ONG Civico.

Conclusion

The debate about Net Neutrality is an issue that is far from being over. Likewise, the decision of several countries to recognize the principle of Net Neutrality in their laws is a trend that is becoming stronger every day on the world political scene. However, the U.S. position against Net Neutrality in the last year could imply a change in this trend.

Chile has been a good experiment in the implementation of the Net Neutrality Principle with good overall results. It appears that the Net Neutrality Law is accomplishing what is supposed to accomplish, although the regulator allegedly has some issues in the control of the same due to the technical difficulties of this job.

On the other hand, it appears that the intermediate position that Chile took is the right one. The necessity of managing the network for the ISPs in order to obtain more efficient and rational use of it is a matter on which there is relative consensus. The promotion of free and open Internet is not necessarily inconsistent with the existence of certain network traffic management measures, provided these measures do not affect free competition and are not discriminatory or arbitrary.

The debate will keep occurring, but at least in Chile, the Net Neutrality Principle and the Net Neutrality Law are standing strong.