net neutrality abstract blue background

The Nigerian Communications Commission (NCC) released the Internet Industry Code of Practice in Support of Network Neutrality (Net Neutrality). Net Neutrality is the principle that internet service providers (ISPs) should treat all online content equally without blocking or slowing down specific websites on purpose or allowing companies to pay for preferential treatment.

This means that your ISP should treat all websites and services the same – e.g. you should not be charged more for accessing your Business mail and less for accessing Social Networking sites such as Facebook, and if you refuse to pay more to access your email, such access should not be throttled or blocked based on such different treatment. Same applies to the company providing such service – they should not be charged more for the provision of access to their services and probably blocked or slowed down.

Net Neutrality helps to stimulate ISP competition and prevents unfair pricing practices. Net neutrality will be crucial for small businesses that thrive in an open internet but may not be able to survive in competition with the economic power of big companies.

Studies have shown that allowing an Internet user the opportunity to enjoy faster internet, the psychology of adaptation of such users will not allow them to accept something slower and this is detrimental to users that cannot afford to pay for the faster internet speed for their services.

It is widely believed that net neutrality will foster the freedom of expression, as otherwise, according to scholars, would discourage the diversity of independent news sources, for example. Such opinions go further to affirm that all people and websites should have equal access to each other, regardless of their ability to pay for that. Without the Net Neutrality rules, the major Telephone ISPs would be able to decide which websites, content and applications succeed and may favour web applications led or developed by them.

The key focus of the code is some of the factors to consider in the promotion of a truly open internet, such as online child protection, privacy and data protection, objectionable content, unsolicited communications, and traffic management practices that are considered necessary to maintain network efficiency.

Nigeria has no known significant Data Protection laws protecting the privacy of citizens online, and the NCC Code of practice is a significant step in protecting the rights of citizens. The code recognises the need for ensuring complete access to the internet with its provisions on Transparency, No discrimination, No blocking, No throttling and No paid-prioritization.

The provisions on no paid prioritisation & throttling of internet bandwidth are welcome as this is advantageous to ensuring Nigeria has equality driven internet access and would allow for the even development of ICT amongst all classes of Nigerians. However, the provisions on throttling have exceptions which are stated below.

  1. To preserve the integrity and security of the network, of services provided via that network, and of the terminal equipment of internet users;
  2. To prevent impending network congestion and mitigate the effects of exceptional or temporary network congestion, provided that equivalent categories of traffic are treated equally;

III.       To comply with a legal instrument, court order or regulatory obligation.

The ISPs can easily meander the exceptions provided as a basis for throttling internet speed as they can find ways to reduce internet speed by prolonging equipment life and providing better services for users.

It is suggested that agents appointed by internet users be allowed to monitor internet throttling measures of ISPs. Certain steps were taken by ISPs to reduce P2P transfer of files (e.g. Download between computers via Magnetic links) are also now illegal under the provisions of the code. It is hoped that the code would be appropriately enforced if implemented with the regulations on no throttling.

The word “Illegal” is not defined in the code. This definition is critical in delineating what can be seen as legal and what is not authorized. A failure to accurately interpret what constitutes illegality could be disastrous for a code that projects to protects the rights of people as illegality can be determined by one body and a clampdown perpetuated by the powers that be without recourse to the Judiciary. This is also known as private enforcement whereby the regulator hands out its functions to companies.

The provisions on notice and takedown of “Illegal” Materials from the Internet and more particularly dealing with Notice from Law Enforcement or Regulatory Bodies is one of the most controversial aspects of the draft code. the provision states that

“Upon receipt of a takedown notice for illegal online content from law enforcement or a regulatory body, an Internet Access Service Provider shall immediately take reasonable steps to block access to that content.”

Such words are liable to abuse by law enforcement agencies and the government when dealing with political opponents. Without an effective adjudicatory system to be used in dealing with purported illegality, the mechanism is liable to abuse and may be a form of despotic tactic while dealing with political opponents. Successful usage of this mode of blocking? Takedown without adequate control measures by a person would lead to limiting of the spread of a particular piece of information. Such scenarios are akin to the NCC allowing the law enforcement agencies act without recourse to a judicial body thereby disregarding consumers right to a fair hearing as provided under the constitution.

The code, therefore, makes it illegal for internet access service providers to prioritize certain services over the others. What this means is that, plans that allow access to only specific websites/applications such as Facebook only plans, Whatsapp only plans, 2GO is no longer allowed under this code. ISPs, therefore, have to provide equal service to anyone who wants to access the internet through any means.

The Code is a step forward in entrenching net neutrality in internet operations in Nigeria. However, it still has critical shortcomings which may go on to haunt its operation and implementation. The Code fails to recognise the roles of the Judiciary to determine what is illegal and what is not unlawful. Another critical aspect the internet code fails to recognise is the issue of copyright, creative content unauthorised usage and Peer 2 Peer file transfer.

In a fast revolving world, solutions have to be adaptive and not just reactive to evolving trends, what this means is that to stop ISPs supporting the proliferation of unauthorised file usage, faster response systems need to be set up to address the issues of copyright infringements. In achieving this, Timelines need to be set for complaints and requests to be blocked.