Summer Edition 2012

Newsletter: Summer Edition 2012

Network Neutrality for Greater Purpose?

The internet, probably the fastest developing technology in the twenty-first century, provides a new way of communication and affects every facet of people’s social lives. Networking sites, such as Facebook and Twitter, are becoming more popular and provide a virtually unlimited space for low cost communication and collaboration. This new platform allows people to freely express and exchange their opinions. However on 21 May 2012, the government of Pakistan shut down Twitter for about eight hours, after the refusal of Twitter to remove content considered objectionable to Muslims. The content is suspected of inciting the ‘Everybody Draw Muhammad Day’, a controversial campaign that the Muslims condemn due to the depictions of Islam’s prophet, which is considered an act of blasphemy. This incident raises one fundamental question: Are we really having freedom of speech in this virtual space and under what situations should this freedom be infringed?

Human Rights Protection
Article 19 of the International Covenant of Civil and Political Rights (“ICCRR”) states that

“Everyone shall have the right of freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.”

The article stresses the importance of the freedom of speech as an intrinsic right of human beings. The Internet, with fewer concrete rules and regulations than other communication channels, has an advantage in facilitating users to express their opinions freely. However, when a person’s freedom of speech inflicts harm on other people’s rights or reputation, say, through bullying over one’s safety or exposing one’s privacy, there bound to be some form of policing to stop the defamatory act or deterrent punishment regardless the medium of expressing the speech, be it the Internet, radio, newspaper etc. The rights of different parties need to be protected, without which the medium including the Internet cannot be guaranteed a smooth operation. Only then can every person equally enjoy the resources on the Internet. Yet, is it justified to infringe people’s freedom of speech like the Pakistan government on Twitter? The ICCPR says any infringement can only be justified “for the protection of national security or of public order, or of public health or morals”. Therefore the shut down of Twitter by the government of Pakistan can be justified if it genuinely aims to prevent the disorder of the outrageous Muslims to ensure public order. However, the reason of protecting national security, public order or even morality can easily be used as a political tactic, depriving citizens of their rights. For example, the shut down of Facebook and Youtube by Chinese government has been criticized as utilizing social order and security as an excuse. It is therefore important to introduce the criterion of ‘Network Neutrality’ in justifying Internet blockage.

Definition of Net Neutrality
There is no universal meaning for the term ‘net neutrality’, but in general it refers to:

“The nature and scope of the content, application, and services to which a network user should enjoy access, as well as the conditions under which this access is available. Restrictions or limitations on either the scope and/or the conditions of access may be imposed either formally or contractually, or less transparently by network operators, services providers, the owners of the content or applications, terminal equipment suppliers, and/or regulators or other branches of Governments, or by various combinations of these stakeholders.” (BMI TechKnowledge, 2010)

The definition of net neutrality and its interpretation vary among countries due to cultural, tradition, legal and political differences. Acts legal on the Internet in some countries can be prohibited in some other countries. However, I surmise that there are two necessary criteria for net neutrality in interrupting the Internet communication -

(i) Just cause and proportionality and
(ii) Non-discrimination.

Criteria (i) - Just cause and Proportionality
It is crucial that the intervention into the Internet social network is having a just cause and the extent is proportional to the just cause. It should be noted that net neutrality is not that every activity on the net should be allowed, but that any restrictions should be minimized. For a cause to be justified, it is deemed that it should be prescribed by the law. However, a law on net activities cannot be too specific, otherwise it needs to be amended regularly due to the rapidly changing Internet modus operandi and innovations. A government should also prove that the intervention is for the better good of the society, thus can minimize any adverse consequences. Therefore, people who support the shut down of Twitter in Pakistan can take this consequentialist approach to argue that the shut down of Twitter can prevent casualties due to religious enmity. In order to differentiate the just cause of ‘preventing social disorder’ and mere ‘infringe freedom of speech’, the potential problems should be supported by sufficient empirical statistics and evidence. Moreover, the government of Pakistan should ensure that that voice can be expressed in alternative channels that cause fewer consequences.

The extent of net intervention should also be proportional to the just cause. For instance, a government should not shut down all social sites simply due to a message posted in one social site that may potentially cause social unrest. A government should ensure that intervention into the Internet should be minimal, since the Internet is a public space for expression.

Criteria (ii) - Non discrimination
A government should not discriminate on different Internet sites, network access operator or service providers. For example, the government of Pakistan has no reason to only shut down Twitter if other social networks are having same or similar problems. This is also the reason why the Chinese government has been criticized in her shutting down Youtube and Facebook because of her differential treatment of the similar sites like Baidu and Weibo. This discrimination cannot be justified as there is no significant proof that Youtube and Facebook are worse than the Chinese sites in provoking security problems in China. Thus the Chinese Government errs on infringing citizens’ rights in choosing channels of expression, and consequentially violating human rights. A government can also be accused of violating the Competition Law if there are discriminatory acts and bias on the Internet.

CONCLUSION
While the Internet has brought human being’s communication, collaboration and networking into a new era, it raises a new debate on the extent of intervention that is allowed to maintain its smooth operation and for greater purposes, such as social order, political stability etc. The laws on net neutrality are not well developed for most countries around the world, and at the same time it is difficult to ensure that the laws are up to date and provide clear guidelines as the Internet environment is changing everyday. Yet, whatever the laws are, fulfillment of just cause and proportionality and non-discrimination are always the critical rules on net neutrality, as demonstrated in the case on Pakistan. Otherwise, intervention on the Internet can lead to infringement of freedom of speech and expression which is a violation of international laws and treaties.

LEE Ho Ching, Matthew
Current Affairs Secretary
World University Service, HKUB, HKUSU,
Session 2012-2013