Tracking Net Neutrality: What have Caribbean Governments been up to?

📸:: Nevarpp via istockphoto.com

Net Neutrality is, at its core, an idea rooted in anti-discrimination. Simply put, everyone involved in providing internet-based content and services to internet users should treat all data transmitted over the internet equally.

Whether Net Neutrality should be observed and, if observed, on what terms, are vexed questions. Typically, regulators tend to support the imposition of Net Neutrality standards because of the perceived consumer protection benefits. Conversely, network operators (like ISPs) tend to oppose the limitations presented by the concept.

I’ve covered Net Neutrality in the past here and here. In this post, I wanted to quickly track major activity by governments in the Caribbean.

[2010] Cayman

View of George Town, the capital of Cayman. 📸: Pixabay

The Cayman Islands was the first jurisdiction in the region to acknowledge Net Neutrality.

The telecoms regulator in Cayman – OfReg – issued a decision prohibiting deep packet inspection by ISPs in 2010: Decision 2010-04. In support of its decision, OfReg cited concerns rooted in the preservation of the principle. The relevant part of Decision 2010-04 said:

“In order to promote online innovation, it is crucial that the Internet remain “neutral”, where ISPs may offer different levels of access at higher rates as long as that tier is offered on a non-discriminatory basis to every other content provider. The Authority does not support the creation of a “private Internet” granting exclusive or preferential access (i.e. higher bandwidth levels) to certain providers or applications selected by the ISP.”

[2016] ECTEL

View of the Pitons in Saint Lucia in the Eastern Caribbean. 📸: Pixabay

ECTEL, the regulator for a number of Eastern Caribbean jurisdictions proposed Net Neutrality language in draft consumer protection regulations in 2016. The draft regulations were part of a larger suite of changes to be ushered in by a proposed Electronic Communications Model Bill. ECTEL also published a statement supporting Net Neutrality in February of that year.

[2016] Guyana

Kaieteur Falls in Guyana. 📸: Pixabay

Guyana is the first Caribbean nation to expressly legislate for Net Neutrality. Indeed, until recent activity in St. Kitts in 2021, Guyana remained the only Caribbean country with a substantive law on the books mandating compliance with the Net Neutrality principle: the Telecommunications Act No 18 of 2016.

Section 28 of Guyana’s Telecommunications Act states:

Every operator and service provider shall …. operate its public telecommunications networks and provide its public telecommunications services in accordance with the principles of Net Neutrality, except as may be provided otherwise in regulations made after public consultation.

Section 28(1)(t) of the Guyana Telecommunications Act 2016-18

[2016] Jamaica

Emancipation Park. 📸: Pixabay

In 2016, the Government of Jamaica signalled its support for Net Neutrality via a statement from the (then) Minister with responsibility for ICT, Andrew Wheatley. The Minister indicated that:

“I know that this is a hot topic that has garnered much discussion in technology circles and our stance is clear. It is my hope that through collaborative and meaningful discussions, Jamaica and indeed all of the developing countries in the region will realise the full benefits to be derived from embracing this important principle,”

Jamaica Information Service article. October 2016

[2018] Trinidad & Tobago

Trinidad flag. 📸: Pixabay

The telecommunications regulator in Trinidad – TATT — published a position paper on Net Neutrality in 2018. The paper appeared to support the observation of Net Neutrality by licensees in Trinidad.

Notable was the relatively balanced approach proposed in the paper: the imposition of Net Neutrality should not serve as an outright ban on the ability of ISPs to disregard the principle, where circumstances demand it. For instance, the paper identified a pragmatic approach to zero-rating by calling for a case-by-case assessment of zero-rating initiatives.

Equally practical was the identification of five core principles that should underpin the operation of the principle in that jurisdiction:

  1. reasonable traffic management;
  2. no unreasonable discrimination;
  3. encouraging investment;
  4. transparency; and
  5. promoting local innovation and entrepreneurship.

[2018] Bahamas

Pig in the water, Bahamas. 📸: Fodor

In 2018, the Bahamian regulator opened consultations on Net Neutrality and OTTs. The IRCA’s initial position was that it would support two specific Net Neutrality-related principles:

  • No blocking or throttling; and
  • No traffic management practices that may cause unreasonable interference or unreasonable disadvantage to consumers, ICPs, ISPs and other licensees.

Following comments from stakeholders, it was determined in December of that year that the URCA would not support the introduction of Net Neutrality in the Bahamas.

[2019] Bermuda

Telephone booths in Bermuda. 📸: Pixabay

The Regulatory Authority of Bermuda held public consultations on Net Neutrality via its ‘Open Internet’ consultation in 2019. The policy statement published by the Regulatory Authority supported Net Neutrality and proposed a prohibition on licensees engaging in blocking, throttling, or paid prioritization.

The consultation was notable for the variety of industry actors that weighed in. These included a global social media platform, one of the largest regional telecoms providers and numerous smaller players with interests in the Bermuda market.

[2019] Cayman

Downtown Georgetown, financial district, Cayman Islands. 📸:Financial Times

In 2019, Cayman’s regulator, OfReg, launched consultations concerning, among other things, Net Neutrality: ICT 2019 – 1 – Consultation Proposed Section 23(2) (Regulatory Notice) and ICT Licensing Template. OfReg sought feedback on various proposed changes, including expressly placing a Net Neutrality observance clause in the licenses of the telcos operating in Cayman.

The proposed amendments put forward by the Cayman regulator were couched as extensions of pre-existing obligations, rather than new impositions. OfReg cited in support of its position section 73 of the Information and Communications Technology Law (2019 Revision) that provides:

“ICT service or ICT network providers may, subject to the rules and procedures established under section 72(4) — …. (b) discontinue or interrupt the provision of such an ICT service or ICT network to a subscriber pursuant to an agreement with that subscriber … only on grounds which are reasonable and non-discriminatory, and where any such action is taken, the ICT service or ICT network provider shall, within seven days, provide in writing to the subscriber the reasons therefor.”

Section 73 of the ICT Law Cayman

[2020] ECTEL

View of Cathedral of the Immaculate Conception in St. George’s, Grenada. 📸: Westend61 / RHPL / Frank Fell

ECTEL, following consultations which began in 2009, produced the final form of the Electronic Communications draft law. The model law serves to provided a uniform basis for revising the telecommunications laws across all of the ECTEL contracting states. Its specific objectives will be achieved by:

“allowing a liberalized and non-discriminatory entry into the electronic communications sector and enabling a robust competitive environment in which there is fairness, transparency and accountability on the part of the regulators of the sector.”

Explanatory Notes to the ECTEL Electronic Communications Bill

Section 86 of the model law obligates all licensees to ‘adopt’ Net Neutrality. The Consumer Protection Regulations that should accompany the bill will provide more detailed guidance on the operation of the principle.

[2021] Saint Kitts and Nevis

📸: Pixabay

In February 2021, the legislature in Saint Kitts and Nevis passed the Electronic Communications Act. This twin-island state is one of ECTEL’s contracting states and its ECA is therefore based on ECTEL’s Electronic Communications Model Law that expressly obligates Net Neutrality observance by licensees.

Published by bartlettmorgan

Attorney at Law in the Commonwealth Caribbean. Focused on developments in the internet law sphere.