Mobile phone penetration in the Kenya has increased tremendously over the years. The Communication Authority of Kenya (CA), in its first quarter 2017/2018 financial year report placed mobile and Internet subscriptions in the country at 41 and 51 million subscriptions respectively. In spite of this increased mobile and Internet penetration, the high cost of accessing the Internet continues to be a constant hindrance to a majority of mobile users in Kenya.

Private companies, in response to this issue, have attempted to provide ‘free’ or subsidised Internet through what has come to be known as zero-rating of the Internet. In this practice, providers of zero-rated Internet, partner with Internet service providers (typically mobile networks) to subsidise access to the Internet. Access to the Internet under such programs is however limited to the zero-rated Internet providers’ website. Examples of such services include: Free Basics by Facebook and Wikipedia’s Zero.

These services are however extremely controversial due to concerns about their impact on net neutrality and effectiveness as a long-term policy for improving Internet access.

Proponents of zero-rated Internet claim that such services connect people who previously did not have access to the Internet especially in emerging markets in Africa and Asia. While connectivity may increase, the fact remains that Internet service providers and companies that engage in this service derive immense financial benefits from such services. For example, mobile Internet providers use free access to the Internet as an on-boarding strategy. Secondly, access to the Internet under this practice is limited to one or a few popular sites depending on the zero-rated Internet service in question. This calls to question the supposed ‘benevolence’ of such services especially in light of their detrimental impact on net neutrality, which holds that all content and users be treated equally so as to ensure free flow of information online.

While zero-rating can be viewed as beneficial to consumers as they do not incur data charges when visiting zero rated websites, it is detrimental as it in a sense changes the “face of the Internet” by limiting the number of websites which users can access. It effectively operates as an information control principally in the event that such services become ubiquitous and to the extent that they are the first point of entry to the Internet for millions and potentially billions of people.

Furthermore, zero-rating of the Internet jeopardizes freedom of expression online. The forums on which Internet users can freely develop and express their opinions are limited and to a great extent controlled by the parties that subsidize access to the Internet. The ideological underpinnings of the internet, and its role as a medium for advocacy on the protection of civil rights, is at danger of being obfuscated in this paradigm.

Moreover, zero-rating greatly reduces the incentive for content creators who do not have the required financial muscle to continue producing content. It is therefore no surprise that companies like Microsoft and other tech giants are at the forefront of championing zero rating. This is however highly ironic seeing that companies such as Wikipedia and Facebook would not have been able to transcend the ‘start-up’ stage had the Internet at their time of inception been limited through zero-rating. Again, the undermining of the right of Internet users to freedom of expression and uninhibited access to the Internet cuts to the core of this issue.

The impact of zero rated Internet is best gleaned through an analysis of the areas where it is widely offered as illustrated below.

Binge On™, is a video streaming service provided by T-Mobile, a mobile telecommunications company. Binge On™ provides zero-rated streaming for specific content providers while limiting the capacity of “non zero-rated” content providers from streaming its platform. “T-Mobile’s Binge On Violates Key Net Neutrality Principles” a report done by Stanford Law School found that T-Mobile, through its zero-rated service, stifled innovation by barring content creators who did not meet its substantial technical requirements. This exposes the fallacy of the perceived ‘altruism’ behind such services i.e. through the commercialization of information and innovation by extension. This further underscores the importance of maintaining ‘diversity of expression’, in the current knowledge economy, where large tracts of information are generated and disseminated online.

Proponents of this practice argue that zero rating is necessary if we are to achieve universal connectivity. The discussion above however, pokes serious holes into this argument. While universal connectivity is necessary to bolster communication, such hopes shall be relegated to a pipe dream as companies that cannot afford to zero rate their services are unable to fairly compete and reach consumers.

It is with this in mind that a need for a comprehensive legal and policy framework to address zero rating arises. Zero-rating should not be used as a substitute for Internet access. Openness, which is a central tenet of the Internet, must be legally protected. While, there are no country specific laws that deal with the effects of zero rating on freedom of expression, article 33(1a) of the Constitution of Kenya provides for the freedom to seek, receive and impart ideas. Internationally, article 19(2) of the International Covenant on Civil and Political Rights (ICCPR) provides for the freedom of expression.

The Internet is and should remain a bastion of freedom of expression. Kenya is thus bound to enact laws and policies that specifically protect this right ‘out of the normal context of speech’ seeing as Internet based modes of protection are protected under the ICCPR.

** Mercy King’ori is a 4th Year Bachelor of Laws student at the Strathmore University.