Case Summary and Outcome

The Constitutional Chamber of the Supreme Court of Costa Rica ruled that it was permissible to restrict mobile internet speeds of some users as long as such restrictions were necessary to alleviate heavy traffic and did not strip users of internet access all together. The case concerned the legitimacy of fair use policies, which permitted mobile companies to lower mobile internet speed of users who expended their data packages. The Chamber upheld the notion that internet access was a fundamental right, and as such the State had a duty to facilitate and expand internet access. Flowing from this obligation, the State rather than a private company was responsible for determining the necessity of restricting mobile internet speeds and the minimum permissible speed under fair use policies.

Facts

On April 2, 2014, the Board of the Superintendence of Telecommunications (Sutel) approved a resolution that temporarily authorized a fair use policy under which companies were permitted to lower or restrict mobile internet speeds for users who expended their contracted internet allowance or data packages.

On January 2017, three individuals (the applicants) submitted a writ of amparo (a remedy for the protection of constitutional rights) before the Constitutional Chamber of the Supreme Court of Costa Rica. The applicants indicated that the fair use policy severely limited their mobile internet speeds and made online browsing impossible. Allegedly, due the restrictions, it took over a minute to open webpages, which sometimes resulted in server time out errors, meaning that webpages were not accessible at all. The applicants thus argued that the fair use policy damaged their fundamental rights, in particular the right to internet access.

One of the applicants noted that the Constitutional Court ruled as early as 2010 that internet access was a fundamental right. According to the said precedent, “because the internet is considered to be public service, it is subject to the constitutional principles of efficiency, effectiveness, equality, continuity and adaptability.” [p.2]  He also argued that the guiding principle of technological neutrality, provided in article 3 of the General Telecommunications Law, prohibited internet service providers from imposing policies that “discriminated between different users’ internet access.” [p.2]

Sutel’s representative explained that it approved three mobile companies to include fair use policies in their contracts. The representative conceded that under these policies it was permissible to lower internet speeds of some user, but rejected the claim that those whose speeds were lowered could not access the internet completely. The representative explained that all users of mobile internet services shared a single infrastructure. Heavy internet users strained this shared network, which limited internet access for others. Thus, the fair use policy was necessary to protect the right to internet access of everyone.

Decision Overview

The Constitutional Chamber of the Supreme Court first reviewed jurisprudence establishing that internet access was a fundamental right. It then clarified State obligations (including Sutel’s) to guarantee internet access. Then the Chamber reviewed the constitutionality of creating fair use policies restricting internet speeds and how they affected internet access. Finally, the Chamber analyzed the application of the principles of reasonableness and proportionality to the fair use policy.

The Chamber reiterated that internet access was a fundamental right that deserved full constitutional protection. It also indicated that internet access has become an essential element of the modern society. Specifically, the internet was not only one of the greatest technological advances of recent decades, but also a tool that enhanced the exercise of other rights. For example, it “democratiz[ed] knowledge by putting an immeasurable amount of information within reach of anyone; facilitate[ed] the participation of citizens in state management, by promoting transparency; establish[ed] means for people to exercise their freedom of expression; and [was] used in many professions, even outside the information technologies sector.” [p.33] Consequently, the Chamber declared that “a restriction on internet access could affect the right to freedom of expression guaranteed under Article 13 of the American Convention on Human Rights.” [p.36]

The Chamber reiterated that due to the importance of the right to internet access in the modern world, States had an obligation to protect and expand internet access. Hence, Costa Rica’s authorities were obliged to promote the democratization of internet access by trying to reduce the so-called digital divide. This obligation meant that the State had to protect individuals from threats that sought to unjustly limit internet access, ensure that internet access expanded and improved, and adopt new technologies to improve internet access. In this context, Sutel had an obligation to ensure that individuals at a minimum had guaranteed access to the internet.

In this instance, the Chamber found that under the existing fair use policy, operators were in charge of determining the minimum functioning internet browsing speed. However, because restricting internet speeds directly impacted on the fundamental right of internet access, the Chamber held that this task fell under Sutel’s responsibilities. The Chamber added that given the indisputable evolution and progress of information technologies, “the functioning minimum in question constituted a dynamic concept that had to be updated” [p.37] as digital technology evolved. Hence, the minimum functioning internet speed had to be periodically reviewed to prevent it from becoming an obstacle to the free advancement of knowledge in society.

The Chamber stressed that it did not oppose the fair use policy in question, but that any such policy had to be applied in accordance with the principles of necessity, reasonableness and proportionality. In this regard, it indicated that according to experts fair use policies for mobile internet users sought to relieve network stress by restricting internet speeds of some users. Applying the principle of necessity, the Chamber concluded that restricting internet speeds under the existing fair use policy was not justified when internet networks were not stressed or experienced heavy traffic.

In conclusion, the Chamber ruled that since internet access was a fundamental right, the State, in this case Sutel, had the responsibility to determine the minimum functioning internet speed internet under the fair use policy in order to ensure that those affected by the policy had internet access. The Chamber gave Sutel four months to establish the minimum functioning internet speed. Additionally, it ordered the agency to review this minimum periodically to ensure that internet speed did not lag behind the demands of evolving information technologies.