Zero-rating: an exception measure

Several topics are part of the “post-pandemic” debate about what we will have learned and what decisions and strategies will be consolidated. In times of uncertainty caused by the pandemic of COVID-19, a discussion that, in a certain way, has fallen asleep, returns to be part of the daily life of the internet in the world. After all, what is zero-rating? What is its relationship with network neutrality? Why was, is, and will it always be a sore point about how the internet works?

Net neutrality: a principle and a purpose

In Brazil, much was discussed about net neutrality during the process of preparing, consulting, and voting on the Internet Bill of Rights (Law 12.965 / 2014). Even before, the network neutrality had already been established as a principle for internet governance in Brazil since 2009.

“6. Neutrality of the network: 

Filtering or traffic privileges must meet ethical and technical criteria only, excluding any political, commercial, religious, and cultural factors or any other form of discrimination or preferential treatment”.

In 2014, Brazil assumed a prominent position in the global discussions on the internet, hosting the multisectoral meeting NETMundial. It is possible to see that net neutrality was one of the sensitive issues, as it does not appear explicitly in the principles chosen at NETMundial, although it may be related to other commands, such as openness and significant participation. If the international document chose not to include net neutrality, the Brazilian Internet Bill of Rights, in turn, did:

“Article 3. The discipline of Internet use in Brazil has the following principles: […] IV – preservation and guarantee of network neutrality;”

Law 12.965 / 14 also dedicates a section of Chapter III (Provision of connection and internet applications) to net neutrality:

“Article 9. Those in charge of the transmission, switching, and routing are required to deal in an isonomic way with any data bundles without distinction between content, origin and destination, service, terminal, or application.”

Decree 8771/2016 reinforces the Brazilian commitment to net neutrality:

“Art. 10. Commercial offers and internet access charging models must preserve a single internet, of an open, plural and diverse nature, understood as a means for promoting human, economic, social and cultural development, contributing to the construction of an inclusive and non-discriminatory society. ”

It is important to note about network neutrality that 1) It is a concept related to the technical functioning of the internet and the operationalization of the traffic system; 2) Dialogue with the legal field, insofar as it seeks to be a tool of guarantees such as freedom of expression, and also the economic one, in issues related to innovation and competition, and; 3) It does not mean to assume that the ways of using the internet are ‘neutral’ or devoid of bias.

The principle, in general terms, refers to the command of non-discrimination on what travels on the network, so that there are no “favorites” in its use. The purpose is that the internet is open, that there are equal opportunities for different actors, services, and users in its use. In practice, however, the scarcity of the internet structure, the growing demand on traffic routes, and the different needs between what is executed in the application layer, among other factors, lead net neutrality and zero-rating at the center discussions.

The practice of zero-rating and its controversies

Although contemplated in legal frameworks and declarations, net neutrality continues to face one of the most challenging practices to the ideal of equal treatment of what circulates on the network. Basically, zero-rating consists of an offer of mobile access to content and applications previously determined by the provider to the user, without incurring additional costs. In practice, a portion of what is used via the internet would be separated, that is, broken down, in traffic, so that it would not be discounted from the amount of data contracted.

When reading this superficial description – which can and must be improved in another opportunity – you may find yourself thinking: “I have seen this before” (or simply “uai”, an expression very typical from Minas Gerais, Brazil). And, yes, if you didn’t know that the name is zero-rating, it corresponds to the many billboards, posters and other advertisements that we see out there, promising applications “without discounting your internet”.

The practice occurs openly in Brazil, where net neutrality is established by law, and in other countries in the world. Therefore, possibly, it does not create so much strangeness. However, it does cause concern, not only for compliance with the law but also about the opening of the internet, its different possibilities, free access to information and knowledge.

With a large part of the population connected by mobile devices in Brazil, caution about practices contrary to net neutrality should be even greater. This is because, in many cases, the access of these people is not open to any application or content on the internet. Once more and more expensive and smaller data packages are exhausted, their use is restricted to services or platforms that “do not spend their internet” / “are not discounted from the data package”.

One way of looking at zero-rating is as an opportunity that people who would not have access to any connection would still have some options. This view seems quite practical, but it contradicts many other fundamental aspects that have made the internet evolve. Despite making some solutions feasible, it leaves all others aside and takes away from the user the autonomy to choose what he can and wants to access, to navigate through an open and global internet, to search and check information, to explore the content of other platforms and applications and to take advantage of the network’s potential.

The practice of zero-rating and its challenge for the effective neutrality of the network in Brazil still seems to be far from over, even if, to some extent, this discussion has been dormant. Proposals related to facing the coronavirus pandemic, however, seem to have shed light, once again, on this practice.

Zero-rating and public health: an exception

Several measures are being taken in the context of the public calamity brought about by the coronavirus. Many of them are related to the seizure of technological tools and digital services by Brazilians. In this context, we started to depend even more on a robust and resilient internet, on which the Internet Steering Committee in Brazil has already manifested.

The pandemic scenario led providers to offer applications linked to the Unified Health System (SUS), such as Coronavirus, which offers functionalities to fight the pandemic, without depending on the data package hired by the user. The initiative, therefore, is zero-rating and allows people to access the application, regardless of the status of their data plan with the connection provider. This means that these providers will separate, in traffic, what is related to the application, so that it reaches the user, without being part of the amount of data contracted. By definition, the measure is an exception to net neutrality.

Unlike other zero-rating situations, this case is also supported by the legal system. As a principle, the neutrality of the network is not absolute and the legal instruments address hypotheses in which this discrimination of traffic does not correspond to non-compliance with the law. Among them are the situations of public calamity, which is already declared in Brazil. It is necessary to realize that, in this case, the practice of zero-rating is supported by the ordering and serves to face public health issues.

As with other technical measures in the fight against COVID-19, the zero-rating for this purpose should be understood as an exception and not as the rule, which remains the neutrality of the network. This case is the demonstration of a palliative measure so that the access of a good part of the population to the tools to face the pandemic is guaranteed. However, the need for full access to the internet should not be taken away from our horizons, as a fundamental right, in addition to emergencies.

The views and opinions expressed in this article are those of the authors.
Illustration by Freepik Stories