Violations of network neutrality contribute with the drama of the disinformation in Brazil
In Brazil, network neutrality guaranteed by law since the Brazilian Civil Rights Framework for the Internet of 2014. In practice, however, there is no inspection and companies violate it daily. Such breaches lead to new challenges to the circulation of information, to the full access to information and to the freedom of speech, in a political context marked by the massive disinformation.
Most of the Internet access in Brazil happens through mobile devices, which, in general, have a limited data package, but offer differentiated access - with no use of the data package - to some applications, such as WhatsApp. Such practice is a breach of the principle of network neutrality. Although the law that guarantees such principle has been internationally applauded, neutrality breaches mark the Internet users' day-to-day in the country and offer a risk to the free Internet, the freedom of speech and democracy itself.
The effects of the network neutrality breach and other factors, such as data packages, cannot be ignored, nor their connection to what happened during the Brazilian elections of 2018, marked by the massive disinformation. Fake pieces of information about an alleged material to teach kids how to be gay, about the distribution of sex toys in schools, about the State choosing the gender of the students and many others had been widely spread and had influenced the electoral process. According to the Chief of the Observer Mission in the Organization of American States (OAS), who has been in the country during that period, the use of WhatsApp to spread fake information during the Brazilian elections has been an "unprecedented phenomenon" in the world; and this is exactly the app to which mobile phone carriers offer access with no data package consumption.
The legal guarantees of the network neutrality in Brazil
Network neutrality implies an isonomic, non-discriminatory treatment of the information flow on the Internet. This principle helps ensuring the preservation of the openness of the network and promotes an environment that is more prone to democracy, freedom of speech and innovation.
Back in 2009, a resolution of the Brazilian Internet Steering Committee (CGI.BR) proposed ten principles for the Internet in Brazil, among them, network neutrality. The resolution stated that "traffic filtering or privileges shall follow technical and Ethical criteria, and political, commercial, religious, cultural reasons shall not be accepted, nor any other form of discrimination or favoritism."
In 2014, with the approval of the Brazilian Civil Rights Framework for the Internet, Brazil has become one of the countries that grant network neutrality as an inherent principle of the World Wide Web with legal guarantees. The process to prepare and approve the Brazilian Civil Rights Framework for the Internet had the intense participation of many civil society organization, social movements and activists in favor of the network freedom. The foundation of the approval of the Brazilian Civil Rights Framework for the Internet was to ensure digital citizenship, that is, rights for users on the web - freedom of speech, privacy and network neutrality. For that reason, the Brazilian Civil Rights Framework for the Internet took the opposite direction to the projects that had been discussed in the country so far, which aimed at criminalizing some uses of the Internet and defining forms of control and inspection.
The process to prepare and approve the Brazilian Civil Rights Framework for the Internet had the intense participation of many civil society organization, social movements and activists in favor of the network freedom. The popular participation in the preparation of the project made it possible for the law to be submitted with great legitimacy. Its approval took place after Edward Snowden had revealed the USA global espionage system - which showed that even the President of Brazil and her ministers had been spied. It has become a global reference as network rights standard and it has been applauded by one of the Web founders, Tim Berners-Lee.
The Brazilian Civil Rights Framework for the Internet became effective in 2016 through the Presidential Decree n. 8771/2016. The Decree has been published by President Dilma Rousseff a little more than two years after the law had become effective and one day before the President was removed from office during her impeachment process. It addresses the network neutrality in several items.
Firstly, it defines the exceptional character of data discrimination and degradation, as foreseen in the MCI: "it can only take place due to technical requirements indispensable to the adequate provision of services and applications or the prioritization of emergency services”. The network management is also allowed "with the objective of preserving its stability, safety and functionality", as long as the international technical standards are observed. Besides, the regulation has brought an institutional arrangement that has defined a system to protect the network neutrality, with the Brazilian Internet Steering Committee (CGI.br) as the agency that defines the guidelines; Anatel (National Telecommunications Agency) as the agency responsible for the technical inspection regarding infrastructure; and the Brazilian Competition Defense System - comprising the Brazilian Administrative Council for Economic Defense (CADE) and the Secretary for Economic of the Ministry of Finance (SAE) and the National Consumer Secretariat, which also has the role of assessing claims and infractions. The regulation Decree also goes one step further towards ensuring the principle of transparency foreseen in the MCI. As of then, either the service provision agreements with end users or the websites will have to report any eventual degradation or discrimination practices, their effects and what has motivated them.
Network neutrality in Brazil has a relatively strong legal support, as seen above. Nonetheless, in practice, what is seen is a total failure in enforcing the above-mentioned legal provisions.
Neutrality breaches mark the web users' day-to-day
In Brazil, 49% of the users access the internet solely via mobile phones. The percentage goes to 80% among classes D and E, as shown by the survey TIC Domicílios 2017 (CGI.br). Most of the Internet users in Brazil live with network neutrality breaches every day. With the profusion of prepaid mobile phones and data packages, depending on the agreement they have with the carriers, many of the users run out of data package before the end of the month, which means they are not able to access the internet, but they are still able to send WhatsApp messages or access apps like Facebook. That is why most of the Internet users in Brazil live with network neutrality breaches every day.
There are at least three ways to discriminate content or applications on the Internet that are considered breaches of the network neutrality principle: applying blocks, reducing speed or applying differentiated or lower prices or even not charging for the access to a certain content.
Blocking content may happen in different ways. One of them is the one that usually happens in countries with strict Internet control as a Governmental initiative or through Internet carriers - which in general are controlled by the State directly or indirectly. China is an example of a country where that practice can be seen.
Reducing speed happens when a certain application does not load at the same speed as others. An example is when the quality of a service that competes directly against the traditional telephony, such as voice services like Skype, Viber, WhatsApp and others, falls; or when the access of the user to competing services is made difficult, such as Voice On Demand services; or when there is an attempt to prevent access to services that may violate intellectual property rights - such as Torrent - of companies that are business partners of the Internet carrier. In the last case, it is not easy for the user to notice the speed reduction, as broadband carriers and service providers do not provide users with a tool to follow up the speed.
The third form of discrimination is charging extra amounts for services or applications. This can be seen, for instance, with an extra fee being charged to ensure access to a certain service. This practice materializes when an extra fee is charged for access to a certain content or when the carrier offers free access to an app chosen by themselves - a practice known as zero rating. That discrimination directly influences the competition with other applications. This is the main form of data discrimination found in Brazil.
The observation above is based on a research done in 2017 by Intervozes in partnership with the Chilean organization Derechos Digitales. They have analyzed the regulation and implementation aspects of network neutrality in Latin America - more precisely in Brazil, Chile, Colombia and Mexico. Zero-rating practices, sponsored packages (promotions when some services have bonus in the data package) for proprietary or third party apps, privileges for applications such as Facebook, Google, WhatsApp are some of the illegal practices detected by this research.
Besides the cases listed above, the practice of blocking the user's connection at the end of the data package is also a breach of network neutrality. Although the Brazilian Civil Rights Framework for the Internet defines that there cannot be "the suspension of the Internet access, except for the debit directly deriving from its use", telecom companies claim that the service suspension after the end of the data package is in agreement with Anatel resolution 614/2013. Nevertheless, the resolution does not refer to Internet blockage - it does authorize carriers to define data packages for mobile connection plans; on the other hand, it states that they must continue offering the service upon new charges or speed reduction.
Traffic degradation - or speed reduction - in some apps is harder to notice. A few recent reports or public claims point out to network neutrality practices through data package discrimination for commercial purposes by the Internet carriers.
It is also difficult for the users to receive transparent, clear information in advance with sufficient description of the traffic management and mitigation practices to be adopted - including those related to network security, as set forth in the Brazilian Civil Rights Framework for the Internet and in the Presidential Decree that regulates it.
This scenario results in a series of challenges. On one hand, there is a legislation to protect rights on the Internet, which is an international reference and aims at protecting network neutrality in all dimensions assessed by the MOM indicators; on the other hand, the enforcement of the legal protections is fragile and network neutrality breaches shape the predominant use of the Internet in the country.
If most of the Brazilian citizens have their Internet access limited to some applications, it is impossible for them to qualify the information and use the wide horizon of possibilities that would come with the Internet access. Many will blame the users for the ongoing machine of massive disinformation. However, how can one expect citizens to verify information if they have Internet plans that do not provide access to websites, with data packages that restrict Internet use and zero-rating practices? Even if the great challenge of disinformation cannot be limited to the network neutrality matter, there is not a solution to ensure full access to the Internet either.
Ensuring network neutrality and universal, integral access to the Internet is a critical element for practicing citizenship nowadays. It is a condition to amplify the plurality and diversity of circulating ideas, which is needed for democracy to exist.