Compatibility of zero-rating offers with brazilian net neutrality rules

Abstract

This article addresses the definition of the legal concept of net neutrality established  by Brazilian legislation, according to the interpretation given to article 9 of the  Brazilian Civil Rights Framework for the Internet, whereby net neutrality refers  to the isonomic treatment of network traffic data, in order to guarantee the internet’s  open character. Based on the interpretation developed herein, in accordance  with the constitutional principle of free enterprise and also in line with the sector-  specific telecommunications regulation – to which internet service providers,  as private agents, are subject –, this article seeks to explain the legality of the  practice of zero-rating offers, which are part of the scope of business freedom of  private entities. In this sense, it presents the argument that commercial agreements  which respect the limits imposed by article 9 of the Brazilian Civil Rights  Framework for the Internet are allowed by Brazilian legislation. Finally, this article  addresses the constitutionality of Decree n. 8.771/2016, which must be interpreted  in accordance with the Brazilian Civil Rights Framework for the Internet in  order to respect the principle of free enterprise.