WHAT HAS HAPPENED?
SCOPE OF THE BILL
Taking a departure from the Telecommunication Bill, 2022 (2022 Bill), the 2023 Bill applies to whole of India as well as any offences committed, or contraventions made outside India. Thus far, there were no express provisions allowing the Department of Telecommunication (DoT) to exercise its jurisdiction outside the Indian territory, but the 2023 Bill seeks to achieve an extra-territorial application of law.
Key definitions governing the applicability of the 2023 Bill are reproduced below:
The 2022 Bill had attempted to include within the definition of ‘telecommunication services’, a list of online communication services that would come under the purview of the telecom regulations. However, in an interesting move, the 2023 Bill has diluted the scope of the term telecommunication services, leaving the applicability of the 2023 Bill vis-à-vis online communication services like WhatsApp, Zoom, Gmail, etc. in great ambiguity and uncertainty.
While organizations such as IAMAI believe that the 2023 Bill “excludes email, internet-based communication services, broadcasting services, machine to machine communication services and over-the-top (OTT) communication services as suggested by IAMAI”, the inclusion of “data stream” within the definition of message may bring online communication services within the purview of the 2023 Bill.
EMPOWERED CENTRE AND STATE
The 2023 Bill strengthens the power of the Central and State Governments by providing them significant control over all forms of telecommunication in the interest of national security, public interest, public health, or friendly relations with foreign states. These powers include:
USER RIGHTS
The following provisions have been introducted in the 2023 to ensure user protection and saftey.
Verifiable Biometric Identification – Section 4(3)(a) of the Telegraph Act, 1885 had a similar provision requiring licensed entities to authenticate its users, however, it provided for a list of modes of authentication that might be used to conduct such authentication. Without clarity on what may be prescribed in terms of a verifiable biometric identification, one may fear that the 2023 Bill may require users to link their Aadhaar to their mobile phones. If this becomes the law, it will nullify the Apex Court’s ruling holding that mandatory linking of Aadhaar with mobile number is illegal and unconstitutional.[1] Furthermore, it will raise concerns relating to privacy and cyber security as to the extent of collection, storage, processing and sharing of such biometric data. Therefore, it is pertinent that the 2023 Bill lays down provisions similar to Section 4(3)(a) of the Telegraph Act, 1885, providing for alternative authentication modes to Aadhaar such as passport.
Not to Furnish Fale Information – In the context of tradition telecom services, the provision is a welcome move as it seeks to prevent rising instances of cybercrime and cyber security frauds. However, if the 2023 Bill is applicable to online communication services, the combined reading of the requirement to identify the users and the duty on users to not furnish false information implies online communication service providers such as Instagram and Twitter that currently allow users to operate and communicate anonymously to rethink their policies if they want to operate in India.
[1] K.S. Puttaswamy (Retd.) & Anr. vs. Union of India & Ors. and PUCL v Union of India (2017) [10 SCC 1]
ALLOCATION OF SPECTRUM
In a welcome move, the 2023 Bill departs from the current regime by eliminating the auction procedures for allocation of spectrum in relation to certain satellite-based services including teleports, television channels, direct to home, headend in the sky, digital satellite news gathering, etc. as listed in the First Schedule to the 2023 Bill. As per the proposed regime under the 2023 Bill, the Central Government will assign spectrum for telecommunication through an administrative process allowing all entities irrespective of their size or revenue the opportunity to access the spectrum.
OFFENCES & PENALTIES
The penalties linked to the offenses outlined in the Second Schedule of the 2023 Bill classify the offenses based on their severity, ranging from non-severe to severe. The civil penalties associated with these offenses range from a written warning to INR 5,00,00,000 (Indian Rupee Five Crore), as highlighted. However, a notable concern arises as the Bill, 2023, does not address the categorization of these offenses as severe or non-severe in any of its provisions.
One of the civil offenses outlined in the 2023 Bill pertains to exceeding the specified number of Subscriber Identity Modules (SIM cards). The penalty for this violation under the Third Schedule is a fine of up to INR 50,000 (Indian Rupee Fifty Thousand) for the initial offense and up to INR 2,00,000 (Indian Rupee Two Lakh) for each subsequent offense. This prompts the consideration of whether there should be a legal restriction on the quantity of SIM cards an individual is allowed to use.
CONCLUDING REMARKS
The 2023 Bill was much awaited given the major development and growth in the telecom sector in the last decade. The 2023 Bill has brought some pragmatic and progressive reforms in line with its global counterparts including an administrative process to assign spectrum and an online robust grievance redressal mechanism. The 2023 Bill has also put on priority the issue of user protection in relation to rising cybercrimes and cyber security frauds. That said, the 2023 Bill missed an opportunity to build in procedures and mechanism of transparency and accountability. Having clear transparency and accountability standards shall mitigate the risk of these powers being susceptible to constitutional challenges and retain user trust. To that end, we hope that continued discussion and feedback from various stakeholders would allow us to implement the 2023 Bill as a model law.
In case of feedback, suggestions, or queries,
please reach out to the C&M team on tmt@chandhiok.com