India proposes to regulate internet communication services

India has proposed to regulate internet-based communication services, requiring platforms to obtain a license for operating in the world's second largest wireless market.

The Department of Telecommunications' new proposal, called Draft Indian Telecommunication Bill, 2022, seeks to consolidate and update three old rules — Indian Telegraph Act, 1885, Indian Wireless Telegraphy Act, 1933 and The Telegraph Wires (Unlawful Protection) Act, 1950.

The 40-page draft proposes to grant the government the ability to intercept messages beaming through internet-powered communication services in the event of "any public emergency or in the interest of the public safety." It also provides the government immunity against any lawsuit.

"No suit, prosecution or other legal proceeding shall lie against the Central Government, the State Government, the Government of a Union Territory, or any other authority under this Act or any person acting on their behalf as the case may be, for anything which is done in good faith, or intended to be done in pursuance of this Act or any rule, regulation or order made thereunder," the draft said.

The draft also asks that individuals using these licensed communications apps should not "furnish any false particulars, suppress any material information or impersonate another person".

Telecom operators in the country have long demanded regulation of apps such as WhatsApp and Telegram "to get a level-playing field" in the South Asian market. But the proliferation of WhatsApp and other chat services in India and beyond that killed the telecom industry's costly texting tariffs did not hurt consumers.

The Department of Telecommunications said it reviewed similar legislations in Australia, Singapore, Japan, European Union, the U.K. and the U.S. while preparing its draft.

The proposed guidelines, for which the ministry will seek public comments until October 20, additionally attempts to take broader steps to curb spam messages. India is one of the worst impacted nations by spam calls and texts, a fact that has allowed call screening apps such as Truecaller to make deep inroads in the nation.

The draft says that "any message offering, advertising or promoting goods, services, interest in property, business opportunity, employment opportunity or investment opportunity" must only be sent after users' prior consent. The draft also proposes a mechanism to enable users to report spam messages received and recommends one or more 'Do Not Disturb' registers to record users' consent for receiving specific promotional messages.

Privacy advocates have raised concerns in the draft. Kazim Rizvi, founding director of New Delhi-based public-policy think tank The Dialogue, said that while there were some positive steps taken, the bill also includes specific issues related to coverage of internet-based services and increased power of surveillance.

"It needs to be kept in mind that OTT communication platforms are already regulated under the IT Act where there are safeguards to protect the interest of consumers and keep the platforms in check. Added regulatory burden would increase the compliance cost and curb innovation in the sector," he noted.

He also pointed out that telecom and internet-based communication platforms are different and should not be regulated together. The communications data through a Web platform is delivered in the form of data packets which is in contrast with the traditional service provided by the telecom service providers that perform functions on atop circuit-switched PSTN architectures where dedicated channels of communication are established between the devices for communication, he said.

Anushka Jain, an associate counsel for surveillance and transparency at digital advocacy group Internet Freedom Foundation, echoed Rizvi's thoughts and said that telecom service providers provide access to the internet and control the entire infrastructure, which is not the case with internet-based platforms.

"OTT providers just provide the service. So, you can't access the OTT providers before engaging with telecom service providers," she said.

The draft notably comes just over a month after India concluded its $19 billion 5G spectrum. The country is expected to get 5G networks later this year.