Definition
Net Neutrality1 is a term that signifies the principle of uniform treatment of the entire internet traffic by the Internet Service Providers (ISPs). Aimed at securing freedom of information, expression and enterprise, it ensures that the preferences of the ISPs (for instance, the broadband or the mobile data companies) do not affect transfer rates or the speed of internet delivery, and there is no consequent influence on what users can access. It prohibits discriminatory practices such as blocking, throttling, paid prioritisation, and Deep Packet Inspections (DPI), which adversely affect equal access. It requires that the transfer of data across networks remains unaffected by the nature of the content, the website or platform involved, the user, or the device and method of communication.
Commentary
1. Origin of the term
The term was coined by Tim Wu in 2003 in his paper ‘Network Neutrality, Broadband Discrimination’,2 written while he was an Associate Professor of Law at the University of Virginia Law School. He is currently a Professor of Law at Columbia University3 and a contributing opinion writer for the New York Times.
Wu’s paper situated the promotion of network neutrality within a broader framework of fair competition, drawing an analogy to privately-owned environments such as retail stores, where the tension between competing private interests and the public interest must be carefully balanced. Addressing the open access debate then prevalent as a structural remedy, the paper highlighted its potential inefficacy in ensuring unbiased innovation, owing to the already not-so-neutral state of the internet, the ‘finicky’ nature of neutrality itself, and the sufficient avenues available to ISPs to favour certain innovations over others, given that the open access remedy addressed only market structure and not anti-discrimination. In its place, the paper advocated for a targeted anti-discrimination regime that would involve direct regulation of ISPs, permitting efficient vertical integrations and reasonable traffic management while prohibiting unfair discrimination.
2. Operation in Practice
In the absence of net neutrality obligations, ISPs may exercise control over internet traffic in several ways, including:
Banning or restricting the use of VPNs (Virtual Private Networks);
Application-specific discrimination, such as slowing down traffic from peer-to-peer file-sharing applications (e.g., the Comcast–BitTorrent controversy4);
Providing free access to selected websites or adopting differential pricing models (e.g., the Free Basics controversy in India5).
3. Relevance vis-à-vis Competition Law
The term holds significant relevance in the antitrust realm. ISPs, as intermediaries in a two-sided market,6 have advocated for specialised service agreements and a fair share of revenue from CAPs (Content and Application Providers), particularly following the transition of the internet from a many-to-many to a few-to-many distribution platform, where certain CAPs contribute disproportionately to internet traffic. Such demands are often justified as a means of recovering the exorbitant costs associated with network capacity and infrastructure investment, and of moving away from a model of complete cross-subsidisation by end users.
This has raised concerns among antitrust regulators,7 as such a regime may enable certain ISPs to assume gatekeeping roles and create entry barriers and market foreclosure effects for smaller players through vertical restraints, preferential treatment of large players, disproportionate allocation of network capacity, and abuse of dominance. Consequently, a recurring question has emerged as to whether competition law, with its ex-post and reactive framework, is sufficient to address such concerns, or whether ex ante regulation is required. This debate has led several jurisdictions to adopt targeted net neutrality regulations.
At the same time, traffic management remains a practical necessity. The challenge lies in ensuring that such management is reasonable and proportionate, striking an adequate balance between CAPs’ freedom of enterprise and users’ right to an open internet, while reconciling traffic management practices with the traditional ‘best efforts’ principle.8 From a competition law perspective, the debate ultimately centres on whether an ex post enforcement framework suffices, or whether net neutrality rules are necessary as an ex ante safeguard against anti-competitive conduct.
4. Regulatory Approaches Across Jurisdictions
Several jurisdictions have responded to these concerns through dedicated net neutrality regulation. In the European Union, the Open Internet and Net Neutrality Regulation 2015/21209 provides the primary framework governing ISP conduct. In the United Kingdom, these obligations were retained after Brexit through the Open Internet Access Regulations 2016,10 preserved in domestic law by the European Union (Withdrawal) Act 2018.11 Compliance and enforcement in the UK is overseen by Ofcom.12
5. Regulatory Framework in India
India’s net neutrality framework has evolved through a combination of sector-specific regulation and policy. The Prohibition of Discriminatory Tariffs for Data Services Regulations, 201613 constitutes the foundational regulatory instrument: Regulation 3 prohibits ‘discriminatory tariffs for data services’, a term defined under Regulation 2(g). The National Digital Communications Policy, 201814 subsequently affirmed net neutrality as a national policy objective. The TRAI’s Recommendations on Net Neutrality issued in November 2017,15 were approved by the Department of Telecommunications in 2018 and implemented through amendments to telecom and internet service licences in 2018–2019. Subsequent TRAI recommendations on Traffic Management Practices (TMPs) and a Multi-Stakeholder Body for Net Neutrality remain under examination.
Sector
Digital Markets and Telecommunications
Alternative Nomenclature
Network Neutrality, Web Freedom, Internet Freedom, Open Internet, etc.16
EBSCO Research Starters, 'Net Neutrality' <https://www.ebsco.com/research-starters/communication-and-mass-media/net-neutrality> accessed 18 June 2026.↩︎
Tim Wu, 'Network Neutrality, Broadband Discrimination' (2003) <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=388863> accessed 18 June 2026.↩︎
Columbia Law School, 'Timothy Wu' <https://www.law.columbia.edu/faculty/timothy-wu> accessed 18 June 2026.↩︎
Yale Daily News, 'Comcast Revises History, Meddles Disingenuously' <https://yaledailynews.com/articles/comcast-revises-history-meddles-disingenuously> accessed 18 June 2026.↩︎
Nanjira Sambuli and others, 'Internet Governance by Ideology and Practice: India’s Free Basics Controversy' (2016) 5(3) Internet Policy Review <https://policyreview.info/articles/analysis/internet-governance-ideology-practice-indias-free-basics-controversy> accessed 18 June 2026.↩︎
Jean Tirole and Jean-Charles Rochet, 'Two-Sided Markets: A Progress Report' (2006) <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=976591> accessed 18 June 2026.↩︎
David Publisher, 'Antitrust Analysis of Net Neutrality' <https://www.davidpublisher.com/Public/uploads/Contribute/5618dba3e62f4.pdf> accessed 18 June 2026.↩︎
LexisNexis, 'Best Efforts' (Legal Glossary) <https://www.lexisnexis.com/en-gb/legal/glossary/best-efforts> accessed 18 June 2026.↩︎
Regulation (EU) 2015/2120 of the European Parliament and of the Council of 25 November 2015 [2015] OJ L310/1.↩︎
Open Internet Access Regulations 2016, SI 2016/607.↩︎
European Union (Withdrawal) Act 2018.↩︎
Ofcom <https://www.ofcom.org.uk/> accessed 18 June 2026.↩︎
Telecom Regulatory Authority of India, Prohibition of Discriminatory Tariffs for Data Services Regulations 2016 <https://trai.gov.in/sites/default/files/2024-09/Regulation_08022016_0.pdf> accessed 18 June 2026.↩︎
Ministry of Communications, National Digital Communications Policy 2018 <https://www.telecomepc.in/assets/tepc/pdf/policies/National_Digital_Communication_Policy_2018.pdf> accessed 18 June 2026.↩︎
Telecom Regulatory Authority of India, 'Recommendations on Net Neutrality' (28 November 2017) <https://www.trai.gov.in/sites/default/files/2024-09/Recommendations_NN_2017_11_28.pdf> accessed 18 June 2026; Press Information Bureau <https://www.pib.gov.in/PressReleaseIframePage.aspx?PRID=1884064®=48&lang=2> accessed 18 June 2026.↩︎
Power Thesaurus, 'Net Neutrality Synonyms' <https://www.powerthesaurus.org/net_neutrality/synonyms> accessed 18 June 2026.↩︎
