The net is dead, long live the Splinternet- what the loss of Net Neutrality means for the Media and Creative Industries

In his book ‘The Master Switch’, Professor Timothy Wu posed a ominous question: since every other information technology market was once initially open and accessible and then became narrow and dominated by powerful monopolies (think of radio or television), is the internet doomed to the same fate?

After last week’s decision by the D.C. Circuit Court of Appeals, it looks like the answer for now is a devastating ‘yup’. At the heart of this case was the issue of ‘net neutrality’, a principle which ensured browsing freedom by preventing bandwidth providers from blocking or prioritizing access to certain websites. To ride a very tired metaphor, if the internet is the information super highway, this decision now allows the broadband mafia to close the offramp to your favourite Information Neighbourhood. And although for some this might have been a pretty dodgy neighbourhood with spam junkies & pop-upstitutes, the information you could find there would be treated no differently to the information coming from the leafy neighbourhoods of major internet platforms.

To bring yourself up to speed, I would recommend reading two excellent articles over at Slate.com and The New Yorker which sum the whole mess up and share some insightful commentary as to what this decision means in a broader societal context. For those who specifically work (and play) in the creative and media industries however, this decision has immensely ominous ramifications for the creative freedom and profit opportunities which the internet currently provides.

In essence, If bandwidth providers can decide how content is accessed, a new valuable commodity has been created  and with it an entirely new market which we will all be subject to: accessibility and access priority. For those who can’t see the writing on the wall immediately, let’s have a quick history recap:
In the past, record labels, publishing houses, broadcasters and movie studios were the gatekeepers to an aspiring creative’s career seeing as they controlled the channels of distribution connecting an audience with a creative work. If you wanted your record sold, your book read or film seen, you had better hoped and prayed that someone in one of those organizations decided you were selling bankable work. Similarly, news journalism and political opinion flowed through narrow river mouths of but a handful of newspapers and broadcasters; news or opinion deemed too niche for the majority of viewers or too out of step with company politics tended not to see the light of day. However, increases in available bandwidth radically changed the face of this old industry landscape as now anyone with youtube, soundcloud or a blog could reach an unlimited audience. The rest is history amigo.

All of this now though is potentially at risk in a number of different ways. To speculate on a few potential scenarios, bandwidth providers could make the bandwidth access necessary for streaming/downloading media content unaffordable for smaller, independent platforms. Or they could conclude deals with major media distributors which effectively would create distribution monopolies by providing exclusive access and blocking out other sites. A worse case scenario could see entire sites just being blocked for the nature of their content regardless of  whether they are able to pay or not.

The important thing to remember here is that the battle for Net Neutrality should be seen as a new front in a much older war of how communications infrastructure and the Media market are regulated and composed. This area of policy and law deals with the question of ‘Media Pluralism’, the idea that the media (in all its various manifestations) is so critical to the healthy functioning of a modern democracy, that the state is justified in intervening (to some extent) in the market to ensure that no single voice or interest can become overly dominant or monopolistic. Media Pluralism generally sub-divides into two areas, ‘internal pluralism’ (which deals with the content which is available to consumers) and ‘external pluralism’ which deals with the underlying infrastructure and market conditions. This idea is easy to see in something like television: there are certain rules in place which regulate the content being broadcasted and certain rules which regulate who broadcasts, how they broadcast, where they broadcast etc.For example, while internal pluralism might try to ensure that there are enough TV programs for the deaf (a demographic too small to to create enough demand in an unregulated market),  external pluralism might see a regulator blocking a merger between two major media corporations to avoid one single entity become too strong. 
Obviously the two are fundamentally linked, as conditions in the market and infrastructural landscape would determine not only who is able to make and distribute content but also who is able to access that content. Going back to the TV example, only those Broadcasters with a license to broadcast are able to do so, and as importantly, only those consumers with the necessary equipment and subscriptions can access the content being transmitted.
Net neutrality, while clearly an issue of external pluralism, poses significantly different questions due to the unique character of the internet in comparison to other mediums such as TV and Radio. TV and Radio are after all fundamentally passive mediums where a relatively small group of people create and distribute content and  the consumer has no real input into the process over and above which channel they chose. Those broadcasters, due to their limited and defined size are at least to some degree regulatable in what content they push to viewers. The internet on the other hand is at its very core an active, decentralized wild west where an indefinite amount of users are able to create and distribute content and users have a near infinite choice in what they consume (Harvard Copyright Luminary Lawrence Lessig in his brilliant TED talk talks of the difference between the pre-internet read only culture versus the current read/write culture of the internet. Definitely worth a watch). What this means is that the direct tools we could use to achieve internal pluralism in traditional analogue mediums are useless in this internet environment. For example, lets say my bandwidth provider guts the bandwidth access to my favourite video hosting site which carried independent documentaries about corporate corruption and emerging underground musicians because the site was unable to pay an additional tariff needed to stream video. Where else would I be able to access this content? Considering the sheer amount of content that would be lost, Its seems impossible to imagine how a regulator would be  would be able to force other creators to compensate for this loss and fill the gap now opened.
Thus the importance of net neutrality cannot be understated here: this structural rule is the very foundation underlying the freedom and variety of online media culture we enjoy today.
So while the US might have taken a major knock in losing its case for net neutrality, what does this hold for those of us outside the US? Is the UK or EU next in line? I would speculate that although a loss of net neutrality in the US would be felt throughout the world, the markedly different approach to market regulation in the UK/EU should prevent this kind of situation from arising.
While there are many layers of law which might step in here, one that stands out for me is the role of Competition Law. Unlike the US, the UK and EU’s approach to Competition Law is a lot more interventionist and prevents certain market conduct which would be allowed over State-side. What could be particularly helpful here is the UK/EU’s significantly more expansive approach to the essential facility doctrine which could possibly ameliorate some of the damage and ensure that such bandwidth is effectively distributed. While this is a complex area of law, the basic upshot is that UK/EU regulators would be more likely to uphold Net Neutrality seeing as bandwidth providers control such a special and essential facility in the functioning of access to the internet.
While all users should be wary of incursions into our internet freedom, those of us in the media and creative industries who rely on this medium for our bread and butter should be particularly watchful. Over and above the radical freedom of speech and freedom of information we could lose, Lord knows no one’s gonna wait 45 minutes to watch that new niche clay-mation music video you spent the weekend crafting.