Having Your Cake and Eating it Too? Zero-Rating, Net Neutrality and International Law

67 Pages Posted: 3 Jun 2020 Last revised: 4 Jun 2020

See all articles by Arturo J Carrillo

Arturo J Carrillo

George Washington University - Law School

Date Written: March 6, 2016


This Article analyzes the international law response to the zero-rating conundrum. National debates rage across the globe on whether to permit zero-rating, which violates net neutrality, as a means of increasing connectivity, especially in the developing world. As a rule, these highly contentious discussions lack rigor, objectivity, and impact. They are characterized by a clash of dogmas: the sanctity of net neutrality principles, on the one hand, versus the imperative to close the digital divide, on the other. This Article seeks to bridge that dichotomy by invoking the applicable international law framework to analyze zero-rating as a limitation on net neutrality understood as a norm of human rights, which net neutrality indisputably is. When viewed in this light, the zero-rating conundrum becomes a more tractable conflict of rights - the right to impart and receive information freely vs. the right to access the Internet - that can be constructively analyzed using the exceptions regime that human rights law provides precisely to resolve such conflicts. Under this framework, which legally binds almost 80% of the countries in the world, proposed exceptions to net neutrality like zero-rating must be examined under specific country conditions. These exceptions are assessed using a balancing test of factors, including necessity and proportionality, to determine whether, on the whole, freedom of expression is advanced or not in that particular context. This approach has the additional advantage of being able to accommodate inputs from other fields, like economics and technology policy. In short, understanding how human rights legal norms apply to net neutrality and zero-rating in practice should lead to better reasoned discourse on both sides of the debate, and thus better outcomes.

Suggested Citation

Carrillo, Arturo J, Having Your Cake and Eating it Too? Zero-Rating, Net Neutrality and International Law (March 6, 2016). 19 Stan. Tech. L. Rev. 364 (2016), GWU Legal Studies Research Paper No. 2020-39, GWU Law School Public Law Research Paper No. 2020-39, Available at SSRN: https://ssrn.com/abstract=2746447

Arturo J Carrillo (Contact Author)

George Washington University - Law School ( email )

2000 H Street, N.W.
Washington, DC 20052
United States

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