24 February 2022.
The Centre for Law and Democracy (CLD) has submitted an amicus curiae (friend of the court) brief to the Constitutional Court of Colombia outlining freedom of expression concerns raised by an exception to Colombia’s net neutrality protections. The exception enables “zero-rating” schemes, whereby Internet access providers effectively give free access to certain services, content or applications (i.e. access which is not counted as using up the data on a user’s plan). While zero-rating schemes may seem like a free perk to customers, they channel traffic towards dominant services such as Facebook or Whatsapp and, in most cases, prevent or delay users from transitioning to access to the full Internet.
“Zero-rating schemes are popular in some countries but are rarely subjected to sufficient scrutiny in terms of their compatibility with human rights law, including States’ obligation to promote universal access to the full Internet in a manner that respects net neutrality” said Toby Mendel, CLD’s Executive Director. “The Constitutional Court has an important opportunity in this case to recognise this obligation and to strike down a provision which enables zero-rating schemes without subjecting them to proper conditions and oversight.”
Article 56(1) of Colombia’s Law 1450 of 2011 enables zero-rating schemes without setting conditions on their use and regardless of their impact on access to the Internet. CLD’s brief argues that such schemes are legitimate only if they do not undermine the progressive achievement of universal access to the whole Internet. In the case of Colombia, no due diligence has been conducted to assess the impact of these schemes and no conditions are placed on their use, leaving their operation entirely to the discretion of commercial companies. While zero-rating schemes, if subjected to appropriate conditions, may be appropriate in countries with very low Internet access rates, as Internet access increases such schemes often leave users in “walled gardens” instead of increasing access to the full Internet.
CLD’s amicus curiae brief is available here.
El informe de amicus curiae está disponible en español aquí.
For further information, please contact:
Centre for Law and Democracy
+1 902 431 3688