Net Neutrality in an Australia Context: Putting in Floodgates before the Storm

Last Week Tonight with John Oliver (2017): Net Neutrality Update screenshot

For many internet users, Net Neutrality may have an air of nostalgia given its ongoing struggles throughout the last decade. Whether it was the Last Week Tonight video on YouTube with 15 million views (Oliver, 2014) or the 282k Dislikes on the FCC video (Pai, 2017), Net Neutrality has been a heated fight between regulatory bodies, corporate powers and the identity of the internet.

 

Importantly, Australia does not have Net Neutrality, and while the ACCC has been cited as saying “We have not seen evidence of Australian ISPs looking to inappropriately block access to internet content” (Elton-Pym, 2017), that does not mean the regulation should not be pre-emptively applied to the Australian context in order to stop the potential of such a power disbalance occurring.

Let’s start by explaining what Net Neutrality is: it’s a legal requirement for internet providers to not give special treatment to any particular websites or to actively hinder users ability to connect with websites they chose to by slowing down their access. This was provably occurring prior to regulation as (Oliver, 2014) points out with Netflix and Comcast’s negotiations overlapping a considerable downturn in internet speed for Comcast users accessing Netflix, which only upturned post negotiations. (Oliver, 2014) commented it was “All the ingredients of a mob shakedown”.

Screenshot of a graphic from Last Week Tonight with John Oliver (2014) Net Neutrality. Rights Reserved to Warner Bros Television Distribution

Net Neutrality’s fate has yet to be politically resolved, the FCC has pushed through its conclusions against the RIF that required them to consider the impact of the legislation on users and the community (Eggerton, 2020). Considering this, the Australian context needs to seriously consider this legislation. Thus far, the removal of the law has not led to ISPs taking significant actions in changing the systems of the internet, but as these court decisions go through, that may very well change. While FCC Commissioner Ajit Pai has insisted it will not impact users, The American context remains unresolved. The EU has similarly had this debate and (Gadringer, 2020) has pointed to their Telecom Single Market Directive as Net Neutrality ‘light’ with speed lanes and specialised services but an explicit rights bill regarding communication online and unjustified discrimination for users. Its aftermath has yet to be fully seen yet, due to its recency. And that’s the inherent problem about arguing about the impact: just because companies haven’t done anything yet to control the internet to their corporate persuasion, that does not mean they will not do so. The ACCC quote needs to be remembered again, because while nothing has changed yet, the regulation is meant to stop it from potentially happening. This potential is exceedingly harmful for users of the platform; it can directly stifle free speech and free market principles.

Let’s examine the advocates for net neutrality: in 2014, Google and Facebook were on the side of grassroots campaigns such as Free Press in the “Battle for the Net” Campaign. (Oliver, 2014) described it as Lux Luthor and Superman teaming up to beat up some guy in Superman’s apartment block. This metaphor is accurate, as after the first fights in 2006-8, Lex Luthor attempted to betray Superman: Google joined with Verizon for a pact in 2010 that would make Google exempt from any internet speed changes Verizon may want to make, and was the foundation for the FCC’s 2010 Open Internet Order which was eventually shut down in the DC Circuit Court, but would have effectively removed net neutrality. What changed between 2006 and 2010 was Google’s monopoly hold, and as Google had grown to be dominant in the market, it was prepared to take short term hits to keep a long-term hold on its market monopoly (Pickard & Berman, 2019). This is important as Google would sign a letter with Facebook, Netflix and Amazon in fighting against Net Neutrality in 2014, once again being willing to campaign for Net Neutrality when the threat of the new power plays had emerged. In 2017-18 the same power players were even more limited in their role in fighting for net neutrality, particularly because they had each grown “big enough to make deals” (Pickard & Berman, 2019).

Verizon’s deal attempts with Google/Facebook (2015). CNN Business. Creative Commons.

 

Why does this matter? Because it illustrates the corporate reasonings regarding net neutrality; it stops corporate overreach on the internet. Corporations that have participated in the discussion were either likely to be punished or given a competitive edge with its introduction. If market competition is something that our system values, then Net Neutrality should be legally enshrined in the internet. In the Australian context, this is something that is particularly important given the ACCC’s Digital Platforms enquiry (ACCC, 2019) showed that Facebook and Google have significant market power over Australian media and the digital space. If either of these attempted a similar deal to the Google Verizon Pact but with an Australian ISP, the effect on the media and news landscape would be substantial; such power would allow for ‘picking and choosing’ of what media the platforms would want to show. Given the Australian (draft) News Media Bargaining Code (ACCC, 2020), Net Neutrality could be vitally important to such a code making an impact, as Google and Facebook may work with ISPs to undermine the code. Netflix did strike a deal with Optus and iiNet in the vein of Comcast dealings in 2015 that have since been retracted (Elton-Pym, 2017) so precedent exists that violations of Net Neutrality as the de facto are coming. From a market standpoint, Net Neutrality is needed to enforce a level playing field for competition so that ISPs and social media companies cannot take advantage of it and diminish potential competition.

 

Optus ad showcasing free Stan for their customers. Potential beginning of ‘special treatment’ in Australia. Rights Reserved by Optus and Stan.

 

The traditional media verses social media element is relevant in discussing free speech. But that fight is another issue which needs separate regulations to address. Freedom of speech is important in this, as a lack of net neutrality provides ISPs the ability to ‘package’ the internet. How they may package it would depend on corporate negotiations, but the likely outcome would be that mainstream platforms would be cheap and accessible, akin to Facebook’s Internet Online for remote countries, whereas their potential competition would be expensive. This would stifle both access to the internet and the ability for competition to emerge against these companies; it’s likely the internet would become the dominion of the traditional corporations, both in news media and in social. While this may not seem dissimilar to how many people do use the internet according to the ACCC digital platforms inquiry, the power that these entities have in determining what is acceptable to say online and where should not remain unmitigated. The very real potential does exist for a silencing of any critique of the action of these corporations in a digital space because they are not legally required not to. If a user was found to be consistently criticising a company in connection with the ISP, the ISP could slow the user and create internet connection issues for the user. Financially, throttling traffic to encourage premium connection purchases is within legal bounds. With a shrinking ISP market, the likelihood of that increases (Endres, 2009). The power potential is more the problem than its current use. Introducing Net Neutrality would cut off this potential at the source.

 

Its worth mentioning that Net Neutrality laws are not singular but plural and vary across bill ideas. The most effective bill appears to be California’s, which has been cited as the “Gold standard” by the Electronic Frontier Foundation (Pickard & Berman, 2019) and is currently set for an oral hearing on January 26th 2021. It goes further than any of the prior mentioned regulation, stopping special treatment through exclusions to data payments to avoid ‘rewarding’ customers for using ISP favoured sites. If any legislation should be looked at for application in the Australian context, it should be this.

The Australian context maybe be different to the USA and EU, but Australian regulations should learn the lessons from these other nations and introduce Net Neutrality before corporations begin to abuse their power over the internet to co-opt it for business purposes: Whether by stifling competition, criticism or by carving the internet into access packages, the potential for this to occur must be stopped. Introducing strict and wide-reaching regulation, such as in California’s Net Neutrality bill, would enable users to continue to freely use the internet as they see fit and allow competition to be fostered on the internet.

 

References

ACCC. (2019). Digital Platforms Inquiry. Canberra: Australian Competition and Consumer Commission.

ACCC. (2020). Australian news media to negotiate payment with major digital platforms. Canberra: Australian Competition & Consumer Commission.

Eggerton, J. (2020, 10 27). House Dems: FCC is Rushing Net Neutrality Order in Advance of Election. Retrieved from Multichannel News: https://www.nexttv.com/news/house-dems-fcc-is-rushing-net-neutrality-order-in-advance-of-election

Elton-Pym, J. (2017, 12 22). Will the US net neutrality decision affect Australian internet users? Retrieved from SBS News: https://www.sbs.com.au/news/will-the-us-net-neutrality-decision-affect-australian-internet-users

Endres, J. (2009). Net Neutrality -How Relevant is it to Australia? Telecommunications Journal of Australia, 59(2), 22-23. doi:10.2104/tja09022.

Gadringer, S. (2020). Network neutrality in the European Union: A communications policy process analysis. Internet Histories, 4(2), 178-195. doi:10.1080/24701475.2020.1749807

Oliver, J. (Director). (2014). Net Neutrality: Last Week Tonight with John Oliver (HBO) [Motion Picture].

Pai, A. (Director). (2017). PSA from Chairman of the FCC Ajit Pai [Motion Picture].

Pickard, V., & Berman, D. E. (2019). The Making of a Movement. In After Net Neutrality: A New Deal for the Digital Age (pp. 69-101). New Haven: Yale University Press.