Written by Urvesha Navghare, the author is a law student pursuing BA.LLB from National Law University Delhi
Introduction
The draft telecommunication bill released in September 2022 is set to repeal and replace certain colonial era laws - The Indian Telegraph Act, 1885, The Indian Wireless Telegraphy Act 1933 and the Telegraph Wires (Unlawful Possession) Act, 1950. Even so, the draft bill is unable to leave its colonial era limitations. The issues presented by the bill are particularly important in the backdrop of the debate between telecom companies and OTT service providers regarding parity in bearing costs of shared network infrastructure . The inclusion of OTT within the definition of ‘telecom services’ in the draft Telecom bill by the government attempts to address this debate. However, concerns arise regarding the lack of a comprehensive analysis and potential repercussions, as well as the concentration of power with the government and the need for a balanced approach that considers the core concerns of all relevant stakeholders.
The Telcos-OTT debate
Since the last few years, Telcos have been advocating for the regulation of over-the-top (OTT) services, particularly messaging apps like Whatsapp and Telegram. They argue for the application of the principle of ‘same service, same rules’. Multiple existing social media and OTT platforms have various features matching the description of ‘telecommunication service’ under section 2(21).
One of the core concerns highlighted by the Cellular Operations Association of India is in relation to OTT service providers acting as free riders on the infrastructure created by Telcos. OTT communication apps, on the other hand, take the position that services rendered by them build on the traditional voice and call features, and therefore cannot be treated in parity with telcos.
Positioning the Telecom bill in the debate
The Centre, in response, released the draft Telecom bill. A key highlight of the bill was the inclusion of OTTs in the definition of ‘telecom services’ to bring these largely unregulated platforms within the ambit of government regulation. This wide interpretation, nevertheless, places OTTs at a similar footing with telcos, so-called “resolving” the ‘same service, same rules’ debate. However, this comparison is hastened without any real engagement with the intricacies of the issues involved. The only objective that seems to be taken into consideration in the draft bill is public security which is somehow such a pressing concern as to warrant overstepping the need for any detailed analysis of possible repercussions or the very base for a comparison.
The bill provides for a system of license, registration and authorization, paired with equal powers of suspension, curtailment, revocation and variation of licenses, which rests with the government. This entertains the possibility of creation of a trap of manipulation for the parties to agree to certain contractual conditions in the hopes of gaining / the fear of losing their licenses. Furthermore, section 24(2)(a) of the bill provides for suspension of internet services at the government’s discretion “as long as the public emergency subsists.” Such a phrasing ends up ignoring the vast jurisprudence of judicial interpretation that emphasizes on taking “emergency” like measures only when necessary or completely unavoidable, thus rendering the search for lesser restrictive alternative measures, unavoidable. The result is an unbridled concentration of power with the government. vast jurisprudence of judicial interpretation that emphasizses on taking “emergency” like measures only when necessary or completely unavoidable, thus rendering the search for lesser restrictive alternative measures, unavoidable. The result is an unbridled concentration of power with the government.
Effect on Right to Privacy
The provisions of the bill, facilitating concentration of power with the government, can adversely affect several fundamental freedoms. The proposed draft bill suggests that OTT platforms should acquire customer Know Your Customer (KYC) details to ensure the continuation of service and enhance cyber-security. However, this raises concerns about the potential sharing of customer KYC information with third parties. Additionally, the bill suggests that the entity holding the license must clearly identify the individual receiving the service through a verifiable method of identification. This identification can be implemented through the collection of data and verification. In countries such as the US, the UK, Brazil, and South Africa, OTTs are not licensed and are not subject to any regulation. It is in the European Union and Singapore that the OTT apps have been brought under the light-touch regulations. However, the case of the EU, which has adopted the Digital Services Act and Digital Markets Act is incomparable to that of India, which has still been unable to successfully adopt the Digital Personal Data Protection Act 2022. The Indian population is thus rendered particularly vulnerable to privacy breaches. Therefore, an overarching governmental surveillance over OTT platforms under the new Telecom bill sounds a death knell of individual liberty in the absence of a data protection legislation guaranteeing against potential abuses of extended regulation.
Moreover, while the bill seems to align with the position of COAI and telcos, it fails to meet the core concerns. The telcos are interested in sustaining themselves against the growing popularity of OTT platforms, while also maintaining a co-dependent relationship, which is financially favorable for its needs. Meanwhile, the discussions on a revenue-sharing mechanism between intermediaries and OTTs such that OTTs pay a carriage charge to telcos have been going around for quite some time. It is also up for consultation with TRAI. Any cost-sharing agreement, if implemented, bears with it additional burdens of ensuring net neutrality and non-discrimination in the playing field. A detailed analysis of the cost sharing model and exploration into possible alternatives is the immediate resolution of the concerns of the main stakeholders, rather than the provisions of the draft bill .
Conclusion
The draft Telecom bill presents significant concerns regarding surveillance and the protection of fundamental rights. The bill's focus on public security seems to overshadow the need for a balanced approach that considers the core concerns of all stakeholders.
The bill grants the government extensive powers, including the ability to suspend, curtail, revoke, and vary licenses. This concentration of power raises concerns about manipulation by the government and the potential for abuse. Additionally, the bill’s impact on the right to privacy is significant. India's approach lacks the robust data protection measures seen in the European Union and Singapore.
Moreover, the bill's so-called alignment with the concerns of telcos does not fully address the core issues, and any potential discussions on revenue-sharing mechanisms require careful consideration to ensure net neutrality and non-discrimination. Therefore, a balanced and transparent approach is necessary to address the concerns raised by the draft Telecom Bill. This includes a comprehensive analysis of the cost-sharing model, exploration of alternative solutions, and the adoption of strong data protection legislation. Protecting individual rights, fostering innovation, and promoting fair competition should be the guiding principles in shaping the future of telecom regulation in India.
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