Network Neutrality and Internet Service Provider Liability Regulation: Are the Wise Monkeys of Cyberspace Becoming Stupid?

This article explains for a global policy audience what the regulatory and governance problems and potential solutions are for the issue referred to as ‘network neutrality’, unpacking its ‘lite’ and ‘heavy’ elements. Eschewing technical, economic or legalistic explanations previously tackled elsewhere, it explains that increasing Internet Service Provider (ISP) control over content risks not just differentiated pricing and speed on the Internet, but also removing the ‘Three Wise Monkeys’ liability regime for ISPs, replaced by an explicit role as content controller and thus censor. It explains that a co-regulatory regime may ensure regulatory oversight and remove obvious abuses by fixed and mobile ISPs, without preventing innovation, while guarding against government abuse of the censorship opportunities provided by new technologies.

Net neutrality comprises two separate non-discrimination commitments. Backward-looking net neutrality lite claims that Internet users should not be disadvantaged due to opaque and invidious practices by their current Internet Service Provider (ISP). Forward-looking positive net neutrality is a principle whereby higher Quality of Service (QoS) for higher prices should be offered on fair, reasonable and non-discriminatory (FRAND) terms to all-comers.
Neither extreme in the debate is an optimum solution. There is too much at stake to expect government to supplant the market in providing higher-speed connections, or for the market to continue to deliver without basic policy and regulatory backstops to ensure continued openness.
Permitting content discrimination on the Internet will permit much more granular knowledge of what an ISPs customers are doing on the Internet. A co-regulatory regime will ensure oversight and remove the most obvious abuses by fixed and mobile ISPs.