Brazil bans zero rating - fudges specialized services

Translated: Zero rating: Civil Marco prohibits or no trade agreements with Otts? Ana Paula Lobo and Luis Osvaldo Grossmann ... 13.05.2016 ... Digital Convergence http://convergenciadigital.uol.com.br/

The Decree which regulates the Civil Marco Internet, one of the last signed by President Dilma Rousseff. Telecommunications operators, consulted by Digital Convergence portal,  itreated the subject with great circumspection, but realize that the interpretation is dubious and divided legal departments. In Brazil, TIM and Claro have, for example, offered free arrangements of WhatsApp and Facebook for their clients.

"The decree prohibits according paid for prioritization. Since I believe that zero rating is a form of priority, argue that paid agreements for zero rating would be sealed," maintains the expert in Internet law and partner of Law José Del Chiaro, Ademir Pereira Junior . He also notes that there is a point to be discussed: the zero rating of the telcos without according OTTs. It would be the advantage to own plans. "You can build the Act and the Decree prohibit these plans, but it is questionable and there is room for debate," he says.

Despite these dubious points, Junior Pereira argues that the decree takes an important step for the network neutrality protection. "It also clarifies relevant points and mainly makes any outstanding traffic management measure, thus preserving the open character of the network," he says. The expert, however, warns.

"The decree of the standards give a substantial normative framework and allowing adequate protection of neutrality. However, we need to monitor carefully the interpretation of the provisions that interpretation is not negated. For example, the item on specialized services in Art.2 needs to be read in a very strict way, so there is no real Internet fragmentation in closed communities and allegedly would be distinct from open Internet. Similarly, it is still necessary to take care practices such as zero rating may distort competition between applications without generating clear benefits, "he says.

In the case of zero rating, it is good to remember that there is an official of the federal government into force. This is the mobile application that provides health information, the 0800 Health, especially data on the zika virus, and if it's the Minicom once called 'Broadband 0800' in practice a sponsored access model it is free for anyone who has a smartphone. The app is available since March and has the support of operators -who do not charge access to the application.

But judging by what already assess the Internet Steering Committee members in Brazil, only with much wiggle you can circumvent the restrictions set out in Decree. Are expressly prohibited from traffic privileges in commercial offers, in addition to various references in the text that any agreement must preserve "the public and unrestricted nature of access."

For the president of NIC.br and member of notorious knowledge of CGI.br, Demi Getschko,  regulation of network neutrality prohibits technical privileges to data packets. You mean you can not adopt measures to speed up certain data. "That is, there is no 'fast lane'," he says. For the 'father' of the Brazilian Internet, so far there is no direct relationship to the fact that certain applications are free or paid, or paid by a third party. The problem is most evident in the block model to the end of the franchise, which in itself is legally debatable. If the blockade adopted, but some specific application can still be accessed, set up the breakdown of net neutrality. "If the service is 'Internet access' certainly violated to neutrality. If the service becomes 'access to X application', no longer access the Internet and, in this case, there is the concept of neutrality. But this 'jump' can be seen as rather artificial, "says Getschko.

CGI.br's Eduardo Parajo highlights the same issue. "The decree says that charging models need to preserve a unique internet. Of course now every article will be viewed with magnifying glass. But it is apparently prohibited agreements like 'zero rating', any privilege is locked. It will require a lot of creativity to interpret it differently, "he says. "Overall, noting that within the CGI.br several sectors, the Decree seems to have met most of the members, especially among those that we might call civil society. Some details could be different? This is always possible. Most importantly, however, it is the preservation of network neutrality guarantee. "

Parajo points to the Decree passages dealing with the custody of personal data where the registration information include affiliation, address, name, marital status and occupation. From the point of view of connection providers and applications, it went beyond the current practice. "What is the registration on the internet asking for membership? And if asked, who will put? I think this kind of thing collides with the regulation itself, which also requires that providers retain the least amount of data possible, "says the director of CGI.br.

Proteste lawyer and CGI Steering Committee member, Flavia Lefèvre, also highlights the seals to agreements not discounting data franchises. "It was clear that commercial practices such as 'zero rating' are curbed, as well as the FreeBASIC Facebook Internet.org program," she says. According to her, "the provisions relating to neutrality made it clear that contracts between connection providers and application and content providers can not involve the commitment of the public and unrestricted nature of the internet, or involve the prioritization of data packets or prioritize applications" .