The Internet is disruptive by nature. It has transformed the way societies and economies work, communicate and play, businesses operate, and how governments deliver services to citizens.

By Carmen Cupido, head of legal at Seacom

Digital technologies are paving the way forward for rapid innovation, economic growth, and job creation. It is therefore crucial that the Internet remains neutral and provides every individual or business with an equal opportunity to leverage its disruptive potential.

The principle of ‘net neutrality’ or “open internet” is central to the expression of online democracy. The Internet has meant that the cost of launching an idea or a movement is not an inhibitive factor and Net neutrality promotes that concept.

It therefore follows that under net neutrality rules companies and organisastions as diverse as Google and your local Internet service provider (ISP) or a national fibre network provider or your mobile operator must treat all Internet traffic and data equally.

Net neutrality means that ISPs cannot intentionally restrict access, slow down, or charge different rates for specific Internet traffic, thus promoting fair competition and a free exchange of information.

The issue has reached prominence in the EU, US and other markets, but where does South Africa stand on the subject?

The need for (updated) legislation

While the net neutrality debate has been going on for many years, COVID-19 has made it more relevant as more services and people move online. Despite being a leading digital economy in Africa, South Africa currently has no specific regulatory framework when it comes to net neutrality. Policy recommendations have, however, been made by the Department of Telecommunications and Postal Services in an ICT Policy White Paper published in 2016.

The white paper outlines the government’s commitment to promoting net neutrality and stipulates that a sector regulator will make recommendations to the minister on whether net neutrality will be best achieved through regulation, guidelines, co-regulation, or self-regulation. The sector regulator will also recommend whether any changes to legislation will be required to reinforce net neutrality, and what standards might need to be set for zero-rating, barring, throttling, or paid prioritisation of traffic in a way that is fair, transparent, and in the public interest.

While we are yet to see the implementation of a formal framework for net neutrality, it is important to remember that net neutrality is only a small part of how the internet is and can be regulated. Bad old-fashioned censorship by governments can still thrive in a network neutral world, and regulators have seen the abuse of privacy-invasive DPI (deep packet inspection) on the rise where zero-rating has been used.

Therefore, the focus on net neutrality should include all aspets of regulation. In this regard, it is important to note that the equitable interconnection and facilities leasing framework in SA, contained in the Electronic Communications Act 2006, is a solid basis to expand the application of equitable principles to all aspects of network neutrality.

The South African government’s stance on net neutrality is also clear: to promote the Internet as a platform for free expression, with equal access to information and innovation, and to prevent the blocking, throttling, or other unfair treatment of lawful Internet content.

A hallmark of democracy

In SA, the Internet Service Providers’ Association (ISPA) has said that it supports net neutrality and made a strong recommendation to the Independent Communications Authority of South Africa (ICASA) to avoid any regulatory intervention. The association’s regulatory adviser, Dominic Cull, sees net neutrality as one of “the most important hallmarks of a functioning democracy”.

Without net neutrality, ISPs could have the power to suppress particular views or prioritise those who can pay the most. New companies and technologies that can’t afford priority treatment would not be able to grow, and users would experience slower connections for certain online services – or pay more for certain kinds of Internet traffic such as video streaming. Well-funded global enterprises could dominate the online space and, without fair competition, growth, and innovation, our digital economy may begin to stagnate.

We have seen how Covid has impacted communities’ opportunity to interact physically, therefore digital inclusion, which basically means access to stable internet, is now, more than ever, a requirement for political and social participation and inclusion.

Zero rating

Due to social distancing requirements moving education and health services online, the South African government recently zero-rated nearly 1 000 websites that contain educational and health-related content. This means that any South African can access these sites for free, including government portals or virtual classroom platforms, while we remain in a coronavirus-related national state of disaster.

Considering that 36% of South Africa’s population is connected to the Internet, and the excessive mobile data prices that many of our country’s Internet users are paying, zero-rating is important to ensure equitable access to essential online information and services. Zero-rating education and health websites certainly serves the public interest, but these zero-ratings are still taking place without an overarching net neutrality framework.

This absence of clear guidelines or regulation brings uncertainty regarding what sites can be considered for zero-rating, when zero-rating can be too preferential or anti-competitive, as well as how ISPs need to prepare infrastructure for additional exemptions as notified by the government.

Open Internet – To legislate or to lead

The US, which has been the leader in the battle for net neutrality has seen its efforts reversed in 2018, but gain traction again in 2021. The to-ing and fro-ing around this issue is not only indicative of the bargaining power brought to bear by big corporations that dominate the space, but also the difficulty in regulating using out of date legislation.

In the US, in particular, the differentiation between ‘common carriers’ and ‘information service providers’ has meant that net neutrality rules were overturned by the courts. In SA, we don’t have the issue of out of date legislation – our enabling legislation (EC Act) and its licensing regime puts all players (licensees) on an equal footing deserving of the same rights to access networks and services on equitable terms.

In addition, in SA we have comprehensive consumer protection, competition and privacy legislation in place. These are all elements that make up the open internet, therefore enabling the sector regulators in those spaces will make the internet more democratic. Anecdotally, I have personally used the Competition Act as a “stick” to have a well-known website refrain from blocking access/traffic.

Worldwide efforts at net neutrality, or the open internet, have varied from outright prohibition of discriminatory conduct (Brazil), banning differential pricing based on content (India) and prohibitingthe blocking of Internet services, usage of deep packet inspection to track customer behaviour and otherwise filtering or manipulating network traffic (Netherlands).

Varying ex ante measures such as price regulation, surcharges and zero-rating have been applied with varying degrees of success in Canada, Singapore and Slovenia. Whereas transparency of network management practices and pricing are gaining ground in the US and UK. In Japan, it seems the pragmatists won by issuing guidelines based on three principles : ISPs should deal with traffic surges by increasing network capacity; altering Internet traffic speeds should be allowed only in exceptional situations; and be justified by objective criteria.

In South Africa, we already have another piece of useful legislation – the Electronic Communications and Transactions Act that deal with the responsibilities of ISP – very broadly defined – and can be expanded. The ECT Act also gave the local ICT sector a self-regulatory mechanism which has served the sector well. It seems the approval of your peers is an important thing on the internet.

In conclusion, the South African ICT sector has a robust legal and regulatory framework that addresses most of the elements of an open internet. Most businesses and netizens support an open internet. Even, Government supports an open internet. But, we will all require strong leadership in implementation by broadening access to the internet, empowering sector regulators and self-regulation, and in shaping and projecting a national cybersecure and cyber-democratic posture.