Neutrality in the network in Chile

Exempt Resolution No. 3, of the Ministry of Transport and Telecommunications, which establishes the technical standard of Law No. 1.251, which establishes the obligation of a guaranteed minimum speed of internet access, has just been published in the Official Gazette dated August 21.046 .

To explain this rule, we must make a brief account of the Chilean regulations regarding the so-called "Net Neutrality". To begin we must understand what this concept means.

Thus, for Pinochet Cantwell “… Consists of allowing any user free access to the content available and hosted on the Internet, regardless of where it comes from and regardless of the access speed of the users. That is, any content on the network must be treated as 'neutral'. This also includes the possibility for users to run all the applications available on the Internet and to use the devices of their choice, without conditions or the possibility of altering their contents by the supplier companies ".[1]

The basic regulation of this matter is found in Law No. 18.168 known as the General Telecommunications Law of 1982[2], which has undergone several modifications throughout its term.

For our analysis, law No. 20.453 of 2010 is important.[3], which established the principle of net neutrality for consumers and internet users, adding to said law the current articles 24 H, 24 I and 24 J. Later, there was a new modification by law No. 21.046[4], which establishes the obligation of a guaranteed minimum speed of internet access, adding a new article 24K, among other additions. This last article is the origin of the rule cited at the beginning.

Subsequently, the complementary rules will arrive: Supreme Decree No. 368 of 2011, known as the Neutrality Regulation[5]; Exempt Resolution No. 3.729 of 2011 known as the Neutrality Protocol[6]; Supreme Decree No. 150 of 2020, on Public Bidding by the Independent Technical Body[7]; and, finally, the rule that closes the entire system and that we mentioned at the beginning of this article.

All this regulatory framework arose from the need to better regulate the internet service. Indeed, the network began to operate in Chile at the beginning of the nineties of the last century and with greater force from 1996 onwards. Its expansion and complexity, added to its relevance for people in various aspects, made clear the need to better regulate this service.

Internet regulation in this regard was included in the telecommunications law, which defines it as "Any transmission, emission or reception of signs, signals, writings, images, sounds and information of any nature, by physical line, radioelectricity, optical means or other electromagnetic systems" (art. 1).

Telecommunication can be carried out in its various forms as established in article 3 and for this, the quality of concessionaire of public telecommunications service is required, as stated in article 8.

Outside of its operation according to the original regulations on telecommunications contemplated in the law, other provisions were needed to regulate this new form of communication. Thus, in 2010, Law No. 20.453 was enacted, which modifies the law, being in turn amended in 2017 by Law No. 21.046. In its current format, Article 24 H refers to “internet access providers” as legal entities that provide commercial connectivity services between end users or third-party networks and the internet. Then, the same article establishes a series of obligations for them:

a) The prohibition of any arbitrary intervention in the user's right to use the Internet in a legal manner. Both the end user and other providers cannot be arbitrarily discriminated for applications, content or services. It can intervene to take measures of traffic management or network administration, without affecting free competition, user data, it must protect against viruses and protect the security of users and can block access to content, applications or services by request of user.

This aspect is the core of the neutrality in the network enshrined in the Chilean legal system. It is noteworthy that two important aspects are protected in this regulation: free competition in the system among those who operate the Internet, which is logical since the absence of competition would lead to mismanagement of the network to the detriment of users; and the protection of personal data, since undoubtedly the operation of the system implies the use of user data by the providers. These two mismanaged aspects can affect net neutrality.

b) The user has the right to use any type of instruments, devices or devices for connection to the network, provided they are legal and do not damage the operation of the network. The purpose of this rule is to avoid the forced and associated use of certain brands or products to the detriment of others for their operation on the network.

c) The offer and operation of parental controls by providers. This must be regulated and communicated to users who exercise this power.

d) The publication on the website of all the indications about the characteristics of Internet access such as speed, quality of link, comparison between national and international connections as well as the nature and guarantees of the service. This is the aspect that is operationalized with article 24 K.

To conclude, the law expressly establishes that the internet service provider must obtain in its favor a concession of either a public telecommunications service or intermediate telecommunications services, in order to be audited and, eventually, sanctioned by the Undersecretariat of Telecommunications[8]

We must note that the processing of claims for breach of these rules by internet providers is done by the procedure established in article 28 bis of the same law before the Undersecretariat, which has not hindered the Service Nacional de Consumidor has filed a class action lawsuit against certain companies due to non-compliance with the provisions on quality of internet service, as provided in article 3 letter b) of Law No. 19.496, regarding the protection of diffuse or collective interest.[9]

Next, the Neutrality Regulation makes a definition of those who participate for these purposes, pointing to the ISPs -Internet Service Provider- (Internet Service Providers) as public telecommunications service concessionaires that provide services to Internet access providers and also these, being defined as any natural or legal person that provides commercial connectivity services between users or their networks and the Internet. Therefore, this concept encompasses both types of entities.

It highlights that, by law, only legal persons are defined as internet providers (art. 24 H), but the regulation includes natural persons (art. 2 letter b). Furthermore, we must bear in mind that there are two different entities, one the public telecommunications service concessionaire and, secondly, the internet access provider (without prejudice to obtaining the concession as we have already indicated) considered as ISPs.

The internet access service is defined as that which allows users to access content, information, applications or other services offered on the internet. We refer here to the user relationship with the provider.

For its part, the user is the natural or legal person who enjoys or makes use of the internet access service, in any modality.

And last but not least, the application provider, this being the natural or legal person that makes content and / or applications available to users on the Internet through its own means or third parties.

Within the provisions of the Neutrality Regulation, there are those related to the neutrality itself in the network and that complement those mentioned in article 24 H of the law, these being:

i) Articles 7 and 8, relative to letter a) mentioned above, on the prohibition of preventing in any way the sending or receiving of content through the Internet, not arbitrarily distinguishing content, without prejudice to traffic management measures and network administration, in which case the users must be informed.

There is also the description of so-called restrictive practices against users, highlighting paragraph 2) of article 8 regarding the prioritization or arbitrary discrimination between content providers, applications and / or users. To establish whether such arbitrariness exists, it is taken as a parameter if the content providers, applications and / or users are of a similar nature. This is what has been called "Traffic Shapping" or traffic shaping, which can affect Internet access by users.

In number 4) of article 8, it refers to the aspect mentioned in letter b) above, regarding the use of instruments, appliances or devices on the network. This rule is correlated with article 11, which establishes the right of users to incorporate or use any kind of instruments, devices or devices on the network, provided that they are legal and that they do not damage or harm the security of the network or the quality of services provided to third parties.

ii) Article 9 which refers to blocking of content requested by the user, already outlined in letter c) above.

iii) Articles 5 and 6 that refer to the rules on advertising the characteristics of Internet access services, mentioned in letter d). The standard is very detailed on the matter, establishing parameters such as commercial characteristics of the plan or services offered and their level, highlighting the upload and download speed, download limit and the guarantee of services. Another aspect that stands out is the measure of traffic management and network administration.

On the other hand, article 10 establishes the obligation to ensure the privacy of user data and article 12 establishes the reference to the claim to the Undersecretariat that users and application providers can make under article 28 bis.

Finally, with respect to quality and specifically the speed of access, there are articles 24 J and 24 K inserted by Law No. 21.046, whose complementation is found between articles 3 to 6 of the Neutrality Regulation; in Exempt Resolution No. 3.729, Supreme Decree No. 150 and Exempt Resolution No. 1.251.

The rules of the regulation are general concepts and obligations, the ones mentioned below being those that give the technical detail of the regulation.

The first resolution is, in essence, a technical protocol to measure the quality of Internet access service.

Regarding the Supreme Decree, it is the norm that establishes the so-called Independent Technical Body (OTI). Regarding the definitions, we find two relevant ones:

  1. Internet Access Providers: which indicates with the acronym "ISPs" as "Those legal persons that provide commercial connectivity services between end users or third party networks and the Internet, under the conditions contemplated in article 24 H of the law" (art. 2, letter c). Unlike the regulation of the law on the matter, it again restricts suppliers to legal persons.
  2. Independent Technical Body or OTI: "Independent technical body defined in article 24 K of the Law, in charge of executing the quality measurements indicated therein and, at the same time, of operating, managing and technically administering the system or application that ISPs are obliged to implement" (art. 2, letter b). It indicates that the foregoing is without prejudice to those other directly related activities entrusted to it by the regulations. This entity is in charge of carrying out quality measurements of internet access. The rest of the norm establishes questions of organic and procedural aspect.

Finally, Exempt Resolution No. 1.251 establishes the technical standard that establishes the obligation of the minimum guaranteed speed of internet access, detailing the parameters to carry out the measurement.

In this last regulation, a controversy has arisen, discussed in the press around article 24, which establishes the obligation of the OTI to deliver to the Sub-secretariat of Telecommunications, through online access, administrative data such as "Dates and times, activity of authorized users, individual measurements and network quality, 'Environmental Data', and all the parameters stored by the OTI". The same is established, more generally, in article 5 letter a) of Supreme Decree No. 150. Some specialists have detected it as an attack on the protection of sensitive personal data that will be known in the process of measuring the speed of the service from Internet.

Likewise, it has been criticized that the rule would not respect the principles of proportionality and purpose of the data collected, especially the latter in the first paragraph of article 25, stating that the information will be used "among other purposes", leaving an open clause for the use of said data for other purposes (24 K, seventh paragraph of the law says the same). Also, it has been pointed out that no law establishes the obligation to deliver detailed information to the state entity.

For its part, the Undersecretariat indicates that there is no possible impact on said data, since these will only be used to measure internet speed and through an application that the person can voluntarily accept on their computers. It also points out that there are special rules for the OTI by which this entity could not violate the confidentiality of data either.[10]

Finally, the fourth transitory article of Supreme Decree No. 150, establishes that the network quality measurement system, which the OTI will operate, must begin operating six months after the publication of the technical standard, that is, on 6 February 2021.

As we can see, Chile already has the regulations to enforce net neutrality in general and protect Internet access speed specifically, which is a relevant aspect within this concept. This does not prevent practical problems in its application, which must be solved during the operation of the system.

*The opinions expressed in this article are those of the author and do not necessarily reflect the views of the administrators of The Crypto Legal blog or the Lawgic Tec association.

[1] PINOCHET CANTWELL, Francisco José. The Special Principles of Internet Law. Editorial Law and Editions El Jurista. Santiago de Chile, 2015. Page 114.

[2] Official Gazette of October 2, 1982.

[3] Official Gazette of August 26, 2010.

[4] Official Gazette of November 25, 2017.

[5] Official Gazette of March 18, 2011.

[6] Official Gazette of July 25, 2011.

[7] Official Gazette of July 27, 2020.

[8] In Chile there is no Superintendency of Telecommunications, being the undersecretary of the same name that carries out its work. Up to the date of this work, there is a bill in the National Congress that creates that entity.

[9] SERNAC website, specifically (consulted 14.8.2020).

[10] The Mercury of Santiago. August 6, 2020. Page B 10.


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Manuel Vergara Rojas
Lawyer. Degree in Legal Sciences from the University of Valparaíso, Chile (State). He currently works as a Professor in the Law Degree, Viña del Mar Headquarters of the University of Las Americas and assistant in the Law Degree at Andrés Bello University, Viña del Mar Headquarters, in the area of ​​Public Law and Law History. He has published three books and scientific articles on public, computer law and history of law education.


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