Net Neutrality is a policy enforcing the freedom and prevention of discrimination of data broadcasted and transferred online. Given the network engineering challenges of implementing net neutrality, Australia should adopt a modified form of this policy that allows for streamlined network management, but restricts the discrimination of data based on content and origin. The arguments for net neutrality revolve around the idea that without it, network providers have too much power to throttle, block and prioritise data in a discriminatory manner that limits fair competition or serves the provider’s own personal business model or political interests (Denardis 2014, p.141). The argument against net neutrality however, consists of both free market (Masnick 2017), and network engineering standpoints. It is suggested that placing net neutrality regulations on network providers will stunt innovation and competition. There are also elements of data discrimination that need to take place in order to effectively manage bandwidth flows and networks. Denardis (2014) suggests however, effective network management only requires discrimination based on the type of data, rather than the actual content of the data or its origin. The only controversial cases of discrimination have occurred outside of data type discrimination. As such, if a policy is developed in Australia to restrict the ways that network managers can discriminate, then we will be able to ensure the fair and equal treatment of all content, whilst ensuring that networks have the ability to adequately manage their infrastructure.
Net Neutrality in Australia
The debate around network neutrality has been alive for as long as the internet itself, however, it has never been implemented in Australia. Very simply, net neutrality can be understood as “treating all types of Internet traffic equally” (Pil Choi & Kim 2010, p.447), regardless of data origin, data type, content, or destination. Under network neutrality, network operators work as ‘common carriers’ of data, by which their services must be made available to the general public without discrimination. Within Australia, Telstra has Universal Service Obligations by which they must ensure that everyone has access to telecommunications, however, this has yet to be implemented in Australia. A policy such as network neutrality is seen to directly benefit both end users and content creators, however it places extensive regulations on network operators, hence the extensive debate over the policy. Within the United States, network neutrality was successfully implemented in 2015, however, only lasted two years before being repealed by the Federal Communications Commission (FCC) for the purpose of “spurring telecoms— freed from regulations—to expand and upgrade their networks” (Coren 2019). In Australia, service providers have always had the ability to throttle and block content at will, with the apparent primary purpose of ensuring smooth and consistent network operation and promoting innovation and competition within the industry. We have seen Australian service providers overreach with this power, however, a hesitance to overreach has remained among the telcos for fear of sparking a serious and public network neutrality debate in Australia (Nash 2019) which would ultimately strip them of far more power and autonomy.
The Need for Net Neutrality
A lack of regulation such as network neutrality allows telecommunications companies fairly unrestricted abilities to throttle, block, or prioritise certain content (Denardis 2014, 134). Whilst this can sometimes be necessary in order to maintain system and network efficiency, an issue arises when this power is used to prevent competition, unfairly restrict content, or uphold the prevailing business model of the network provider (Denardis 2014, 145). Examples teetering on the verge of this kind of discrimination have been seen in Australia over recent years with Telstra’s proposal of a ‘Netflix Tax’. Duke (2019) suggested that Telstra had proposed to charge users of streaming services such as Netflix an increased premium rate. Telstra is presently the co-owner of Australian cable television provider Foxtel in a joint venture with News Corp. With Netflix as a clear competitor to Foxtel, there is an incentive for Telstra to disincentivise the use of competing subscription services, hence an abuse of the freedoms granted to them by a largely unregulated industry, resulting in anticompetitive behaviour to protect their “prevailing business model” (Denardis 2014, p.145). It is for this reason that an overwhelming majority of individuals and internet users support the implementation of network neutrality. Wu (2003, p212) suggests that in order to correctly serve end users and allow the best applications to succeed “It is therefore important that the platform be neutral to ensure the competition remains meritocratic”. Network neutrality provides the perfect and most purely neutral platform by which no prioritisation is given to partnerships or personal interests of corporations. Particularly in the United States, but also in Australia, Network Neutrality is closely linked to freedom of expression and free speech. Denardis (2014, p.146) posits that “Net neutrality is related to First Amendment values because of its fundamental idea of freedom of speech for anyone transmitting lawful material over the Internet”. Whilst we don’t have a legal freedom of speech in Australia, freedom of expression and transmission is a value that we certainly hold in high regard. As such, net neutrality represents a truly liberated model by which meritocracy of applications and freedom of information and expression prevail.
The Risk of Net Neutrality
Although network neutrality represents a free, liberated, non-discriminative and fair internet, it also poses a fair amount of logistical issues that must be addressed. As such, there are many in opposition to network neutrality, not only due to the network engineering difficulties, but also due to its alleged stunting of industry grown and innovation, as well as the perceived level of bureaucratic overreach by some. Even Tim Wu (Wu & Yoo 2007, p.577), one of net neutrality’s biggest supporters recognises that a certain level of data discrimination is necessary;
“I don’t think that the fact that an absolute ban on discrimination would be ridiculous undermines the case for discrimination laws. It’s like what nutritionists say about fat: there are good and bad types.”
The greatest and most solid argument against net neutrality is that “some traffic discrimination is necessary as a routine part of network management” (Denardis 2014, p.143). Whilst latency and lag is not an issue for certain media types such as text messaging and emails, it can seriously detriment the transmission of voice and video media. With innovations in incredibly high latency sensitive technologies such as telesurgery, the inability to prioritise this data will lead to great setbacks and a delay in the ability to implement such innovation (Smith 2015). It is important to consider here however, that this kind of discrimination occurs purely based on the type of data being transmitted, and not necessarily on its senders, receivers, or the content of the data itself. Whilst ‘data type’ discrimination is necessary, the most controversial instances of discrimination do not revolve around data type, but around “origination of that traffic, the content of that traffic, or the degree to which information competes with a prevailing business model” (Denardis 2014, p.145) Economides (2008, p.212) suggests that non neutrality ultimately follows a “pay per service” model, where discrimination supersedes network management, and becomes more monetised and even politicised. As such, there is validity in the argument that a level of data discrimination is necessary for network management. What this suggests however, is that there must be laws set in place to ensure that regulate the types and levels of discrimination occurring, and that these discriminations are restricted to network management purposes and will not discriminate unfairly.
What Does This Mean for Us?
If correctly considered and implemented, my proposed regulations would allow for digital freedom of expression and unobstructed digital competition without compromising the ability for network operators to manage their networks and maximise efficiency. This will ensure there is regulation over what is allowed to be throttled, restricted and prioritised by these network managers, so that certain data and certain citizens are not unfairly put at a disadvantage. We will notice a fair and equitable pricing for all services and types of data, there will be an ability for all applications and content producers to thrive unobstructed by conflicts with network providers, and we will still see productive and effective network management to prioritise latency sensitive data types where necessary.
Whilst net neutrality has been a contentious and hotly debated issue, the need for anti data discrimination laws are absolutely necessary to ensure fair competition and freedom of data and access for end-users. As discussed, net neutrality advocates have argued that unregulated industry has too much power to unfairly discriminate and behave in an anti competitive manner, therefore stifling other industries in favour of their own and restricting freedom of information and expression. Net neutrality detractors however, argue that this discrimination is necessary for network management and to promote further innovation. In order to meet both of these requirements, a reformatted version of network neutrality must therefore be formulated. This regulation will allow for data discrimination on a network regulation basis, to ensure latency sensitive services can be prioritised where necessary and network downtimes can be avoided. At the same time, we will be able to ensure that discrimination is not undertaken unfairly, and that citizens have the freedom to transmit any lawful data they wish to.
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