A/HRC/35/22 experience higher costs or lower quality of service when they attempt to access Internet content and applications in the slow lanes. At the same time, they may be compelled to engage with content that has been prioritized without their knowledge or input. 25. Several States prohibit paid prioritization. For example, the Netherlands, an early adopter of net neutrality, forbids providers from making “the price of the rates for Internet access services dependent on the services and applications which are offered or used via these services”. 47 The United States Federal Communications Commission 2015 Open Internet Order bans the “management of a broadband provider’s network to directly or indirectly favour some traffic over other traffic ... in exchange for consideration (monetary or otherwise) from a third party, or to benefit an affiliated entity”.48 Zero rating 26. Zero rating is the practice of not charging for the use of Internet data associated with a particular application or service; other services or applications, meanwhile, are subject to metered costs. Zero rating arrangements vary from data plans that exempt certain Internet services from a subscriber’s usage count to the provision of unmetered access to certain services without the purchase of a plan. 49 Variations notwithstanding, zero rating arrangements privilege access to content and may increase the cost of metered data. For users who struggle to afford metered data, they might end up relying exclusively on zerorated services, resulting in limited access to information for communities that may already be marginalized in their access to information and public participation. 27. Zero rating arrangements may provide users with limited Internet access in areas that would otherwise completely lack access. 50 However, broader Internet access may still remain out of reach for users, trapping them in permanently walled online gardens. 51 The assumption that limited access will eventually ripen into full connectivity requires further study. It may be dependent upon factors such as user behaviour, market conditions, the human rights landscape and the regulatory environment. 52 28. These competing considerations have led to variations in regulatory approaches. In India, public concern over Facebook’s Free Basics culminated in a ban on any arrangement that “has the effect of discriminatory tariffs for data services being offered or charged to the consumer on the basis of content”. 53 Restrictions on zero rating are in effect in Chile, Norway, the Netherlands, Finland, Iceland, Estonia, Latvia, Lithuania, Malta and Japan. 54 In contrast, the United States, followed later by the Body of European Regulators for Electronic Communications (BEREC), adopted guidelines involving a case-by-case approach. 55 States that adopt a case-by-case approach should carefully scrutinize and, if necessary, reject arrangements that, among other things, zero-rate affiliated content, condition zero rating on payment or favour access to certain applications within a class of 47 48 49 50 51 52 53 54 55 Journal of International Affairs: International Engagement on Cyber V: Securing Critical Infrastructure (2 October 2015), p. 103. Netherlands, Telecommunications Act, art. 7.4a (3). United States of America, Federal Communications Commission, Protecting and Promoting the Open Internet, FCC 15-24 (12 March 2015), para. 18. This Order, possibly under threat at the time of writing the present report, remains a useful template for net neutrality regulation. Erik Stallman and R. Stanley Adams, IV, “Zero Rating: A framework for assessing benefits and harms”, Center for Democracy and Technology (January 2016). Ibid., pp. 4 and 11. Barbara van Schewick, “Network neutrality and zero-rating”, submission to the United States Federal Communications Commission (19 February 2014), p. 7. Erik Stallman and R. Stanley Adams, IV, “Zero Rating: A framework for assessing benefits and harms” (January 2016), p. 15. India, Telecom Regulatory Authority, “TRAI releases the Prohibition of Discriminatory Tariffs for Data Services Regulations, 2016”, press release (8 February 2016). Emily Hong, “A zero sum game? What you should know about zero-rating”, New America Weekly, Edition 109 (4 February 2016). United States, Federal Communications Commission, Protecting and Promoting the Open Internet, FCC 15-24 (12 March 2015), para. 21; and BEREC, Guidelines on the Implementation by National Regulators of European Net Neutrality Rules (August 2016) (BoR (16) 127). 9