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ICT Law: Net-neutrality provisions of draft Internet industry code of practice- a commentary

By Chukwuyere Izuogu

Net-neutrality, the foundation of an open internet seems to be a very topical telecommunications policy issue for several national governments. In the European Union, EU, the European Commission, EC, in April 2019 will present to the European Parliament, its report of a study aimed at collecting information about the implementation of the net-neutrality provisions of Regulation (EU)2015/2120 (the EU Regulation) across the EU. In the US, the Federal Communications Commission, FCC, rolled back the Open Internet Order of 2015 which imposed net-neutrality requirements on internet access service providers, IASPs and instead enacted the Restoring Internet Freedom Order 2018 which, inter alia imposed disclosure of network management practices on IASPs to ensure that they abide by open internet principles by reducing their incentives and ability to violate those principles.

Chukwuyere Izuogu
Chukwuyere Izuogu

Net-neutrality as a rule requires that IASPs do not discriminate in their treatment of content (or traffic)that they transmit. The policy justification for this no-discrimination rule is that the internet is a dumb network and any traffic passing through an IASP’s network should be treated on a first-come, first-served basis due to the open architectural nature of the internet. In Nigeria, the Nigerian Communications Commission (the Commission) appears to be in support of net-neutrality and has accordingly responded by releasing a Draft Internet Industry Code of Practice (the Draft Code) that requires IASPs to comply with net-neutrality requirements once enacted. This commentary provides an analysis of the net-neutrality provisions of the Draft Code and is an excerpt of author’s forth-coming article tentatively titled: A Practical Assessment of Competition Regulation as a Viable Option for Protecting Net-Neutrality in Nigeria.

The Draft Code

The Draft Code was released by the Commission in 2017 and has the following objectives: protect the right of internet users to an open internet; provide clear guidelines to IASPs on the use of traffic management practices; outline the obligations of IASPs in relation to the protection of consumers’ personal data; outline the obligations of IASPs in the handling of offensive and potentially harmful content, and the protection of minors and vulnerable audiences online; ensure adequate safeguards are put in place by IASPs against unsolicited internet communications; and establish best practices for internet governance in Nigeria, in line with emerging issues and global trends.

Since its release in 2017, the Draft Code has undergone several revisions in conjunction with stakeholders.

Scope of the Draft Code

The Code will apply to IASPs and Internet Access Services within Nigeria. The Draft Code in Section 1.4 defines an IASP to be “Any entity licensed by the Nigerian Communications Commission, engaged in the provision of an Internet Access Service, irrespective of the network technology or terminal equipment used, or the licence held,” while Internet Access Services is defined as “A publicly available electronic communications service, irrespective of the network technology or terminal equipment used, that provides access to data communications to or from Network Termination Points with IP addresses that are assigned through delegation from the Internet Assigned Numbers Authority.”

Under the Draft Code, net-neutrality is deemed protected in Sections 2 – 3, of which a commentary is given below.

Right of Consumers to Open Internet Access

Section 2 prescribes measures designed to guarantee the rights of an end-user to an open internet, in particular an end-user’s right to have unrestricted and non-discriminatory access to lawful content, applications or services via his internet access services is expressly stated in this section. In accordance with this provision, the end-user is free to send and receive information and content online and use the appropriate terminal device of his choice without restriction from an IASP. This section also prescribes transparency obligations for IASPs when they engage in traffic management practices necessary for the efficient operation of the network.

Transparency

Section 3.1seeks to impose specific transparency obligation on IASPs with respect to the performance, technical and commercial terms of its internet access service in a manner that is “sufficient for consumers and third-parties to make informed choices” regarding their uses of such services. Not only does this provision specify disclosure to consumers/end-users, it also requires that information disclosure be made to third-party Content Application Providers, CAPs who may require such technical information in seeking to create content on the open internet. This disclosure is required to be made in a clear, comprehensible and comprehensive manner in all service agreements with the IASP and on the IASP’s website. Finally, this section sets out the minimum information that must be disclosed by an IASP where it engages in any network management practices.

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