The democratic society has long believed that “Journalism” is a noble profession and “Media” is an important part of the democratic society. As a result “Freedom of Press” was considered an important principle and was equated to “Freedom of Speech” as a fundamental right. Unfortunately, in the recent decades, Media has given up its status as a purveyor of neutral information and become a mouth piece of some ideology. If we recall the earlier Akashavani news of 9.00 pm and compare it with the prime time TV debates of today, the difference is clear.
The earlier radio news and thereafter the DD News was not as dramatic as today’s TV debates but it did give some information on what was happening in India. Even BBC was a highly respected media that gave out news from across the world. During the emergency days, Indian news lost its credibility and forced Indians to start distrusting the Government media . That was the time when we were relying on the BBC more than Indian news. Though Indira Gandhi left the scene, the trust of the Government media did not fully come back.
When the new media with Internet came in, it was a breath of fresh air that brought news directly from the public. Every Internet user became a potential reporter and the message boards became the alternative to PTI news feed. Once the platforms enabling P2P broadcast developed, the era of Citizen journalist was born.
Had this development been used properly, we would have seen a golden era of news directly from the market like the breaking news reporting of the Osama Bin Capture on the Twitter. Unfortunately the greed of people spoiled the market once again and P2P reporting became a ground for commercial broadcasting of views more than news.
While news papers like Times of India became advertorial publications, respected publications like Hindu became ideological publications. Either way they lost credibility. In the meantime Arnab Goswami introduced a new kind of journalism where TV debates became useless pieces of shouting of different spokespersons of political parties. Today all TV debates have spokespersons who donot discuss on issues but only put up one biased view over another.
A time has come where viewers are happy to go back to the uninteresting DD news than view the cacophony on the TV screen. Wisdom indicates that the TV channels will soon realize this and try to find a better presentation.
As a result of these developments, today there is no “Media” as it originally existed. TV Channels are just platforms where different political parties present their views. Even when some neutral experts are present in the debate, they hardly get opportunity to speak and anchors are happy to let political big mouths to shout at each other.
If AI based news aggregators are picking up content from these channels, then their outputs will also be as biased and unreliable as the TV news. The Google results and the ChatGPT outputs will get poisoned over time due to the asymmetric dumping of biased information to the Internet.
I am trying to recall these developments to indicate that “Digital Media” of today does not have the characteristics of the so called “Fourth Estate” and has lost the logic for claiming rights such as “Freedom of Expression” or “Freedom of Speech”.
The activists who are crying that the new Broadcasting Bill proposed would be a recipe for censorship should remember that today’s digital media and OTT platforms donot represent “Media” and hence donot deserve or need protection like the olden day publications including the Old Hindu or Old Indian Express.
Today digital media is always biased either with commercial interests or with ideological issues. We either have advertisement dictated content or Soros dictated content. Hence the regulation of licensing and regulation of content is essential.
The Broadcasting Bill actually tries to provide opportunity for “Self Regulation”, “Transparency through Content Rating Publication” etc. If properly used, genuine publications can regain respect of the community and the status as “Neutral” purveyors of news. If the pseudo news agencies like Wire.com or Scroll.in etc are worried that the Bill can lead to censorship then they have to blame themselves for the state of affairs.
When the Government proposed fake news control, it was this media which refused to support. Now when deepfake is getting published, it is the same media which is unable to stop the menace. With the critical Indian elections of 2024 around the corner, the need for preventing misuse of digital media is paramount to protect democracy in India.
Hence the Broadcasting Bill has a reason to be there and should be there before the next election. The Government has been complacent and delayed most of the reforms which were due thinking that they have all the time to act and have suddenly found that time is now running out. It would therefore be difficult to get the Broadcasting Bill passed before we get into elections.
Even if the Bill is passed, there is a distinct possibility that Supreme Court will hold it back as it is another institution that has lost its neutrality in the political disputes. India is today ruled by the Supreme Court which defines its own Constitution and interprets the Indian Constitution the way it wants. With a judiciary where Judges appoint Judges and Judges interpret the Basic Structure of Constitution, the “Voice of Citizens” has been rendered impotent in our current Governance system.
While we need a balance between the powers of the Judiciary, Media, Legislature and Executive, currently the Judiciary has a disproportionate power and is unwilling to reform itself but dictates reformation in every other sphere.
Just as major changes in the legislative reforms requires approval of two thirds majority of the joint session of Parliament, the Constitutional interpretations of basic structure should be made possible only with two thirds majority of all the Supreme Court judges and not 3 out of 5 judges in a bench or 7 out of 13 in the bench where 6 judges donot agree with the other 7.
We therefore foresee that the Broadcasting Bill if passed will soon be referred to a constitutional bench of the Supreme Court and will not be operative in the immediate future.
With both the Judiciary and the Media failing in their respective responsibilities to uphold the democratic traditions, the future of democracy in India is firmly in the hands of citizens who can keep themselves free from the corruptive influences of freebies circulated by one section of politicians.
It is time for the public therefore to Awake, Arise and Stop not till the reign of corruption in various forms including corrupt political practices, morally corrupt Judicial system and Financially corrupt Journalism are eliminated.
Requirements for Broadcasters and Broadcasting Network Operators
5
General Obligations of boradcasters and broadcasting Networking operators
6
Compulsory transmission of certain channels
7
Guidelines for providing Platform Services
8
Renewal of Registrations
9
Suspension or revocation of registration
10
Appeals
Part A
Broadcasters and Cable and Satellite Broadcasting networks
11
Approval for up linking or downlinking of programmes or channels by broadcaster
12
Registration of Cable and Satellite Broadcasting Network Operators
13
Obligations of Cable and Satellite broadcasting network operators
14
Maintenance of records of subscriber data
Part B
Radio Broadcasting Networks
15
Grant of permissions to Radio Broadcasting network operators
Part C
Internet Broadcasting Networks
16
Intimation by Internet Broadcasting network operators
17
Exemptions for small OTT broadcasting service operators*
Part D
Terrestrial Broadcasting Networks
18
Grant of permission to terrestrial broadcasting network operators
III
Content Standards, Accessibility and access control measures
19
Programme code and Advertising Code
20
News and Current Affairs Programmes
21
Self Classification by broadcasters
22
Access Control measures
23
Accessibility guidelines for persons with disabilities
IV
Regulatory Structure
24
Regulatory Structure
25
Self Regulation by broadcasters and broadcasting network operators
26
Self regulatory organizations of broadcasters and broadcasting network operators
27
Broadcast advisory council
28
Functions of the Broadcasting Advisory Council
29
Constitution of review panels by Broadcast Advisory Council
V
Inspections and Penalties
30
Power of Inspection
31
Power to seize and confiscate equipment
32
Giving opportunity to the operator of broadcasting network or broadcasting services of seized equipment
33
Punishment for contravention of provisions of this Act
34
Penalty for contravention of provisions other than Programme code and Advertising code of this Act
35
Penalty and measures for contraventions of Programme code and Advertising Code
36
Power to prohibit transmission of programme or operation of broadcaster or broadcasting network
VI
Miscellaneous
37
Sharing of Infrastructure
38
Right of way for broadcasting networks
39
Provisions in relation to emerging and future broadcasting technologies
40
Registration for providing audience measurement services
41
Transitional provision
42
Application of other laws not barred
43
Power to make rules
44
Power of the Central Government to issue guidelines
45
Delegation of powers by Central Government
46
Rules to be lad before Parliament
47
Power to remove difficulties
48
Savings and repeal
First Schedule
Quantum of penalties for different contraventions and repeated contraventions
1
Penalty structure based on category of registered persons or entities
2
The quantum of penalty for contravention of provisions other than those related to Progamme code and Advertising Code, under this Act, Rules or Guidelines
3
The quantum of penalty with respect to the violation of programme code and Advertising code under the Act, Rules or Guidelines
Second Schedule
Broadcasting Networks and Services
Third schedule
Offences and Punishments
1
Fine Structure based on Ctegory of Registered persons or entities
2
The quantum of fine and term of imprisonment for offences under this Act, Rules or Guidelines made thereunder
Under the explanatory note in Annexure II, a Chapter wise summary has been provided as follows.
(a) Chapter I- preliminary
This chapter provides a concise overview of the “Broadcasting Services (Regulation) Bill, 2023,” which is proposed to be the official title of the Act. Its primary purpose is to introduce the Act and provide definitions for the different terms employed within its framework. Efforts have been made diligently to ensure that it encompasses all pertinent terms within its scope.
One of the key objectives of the Bill is to address the evolving landscape of the broadcasting industry, particularly in light of the emergence of new technologies.
The Bill is designed to cater to the needs of all service providers in the sector, ranging from traditional or conventional broadcasters to those utilizing the latest technological advancements.
By incorporating provisions that encompass a wide range of service providers, the Act acknowledges the diverse nature of the broadcasting industry and the varying methodologies employed by different service providers. This inclusiveness allows the Act to effectively regulate and govern all types of broadcasters, irrespective of their operational methods or the technologies they employ.
(b) Chapter II- Regulation of Broadcasting Services
Chapter II of the broadcasting services regulation focuses on the regulation of different types of broadcasters and broadcasting networks in India. It is divided into four parts: Part A covers broadcasters and cable and satellite broadcasting networks, Part B deals with radio broadcasting networks, Part C pertains to internet broadcasting networks, and Part D relates to terrestrial broadcasting networks.
It states that no person can provide broadcasting services or operate a broadcasting network without proper registration or intimation. However, certain entities like government departments, political parties, and public authorities are not eligible for registration, except for authorized entities like Prasar Bharti or channels operated by Parliament. Previous entities operating under authorization must transfer their operations to eligible entities in accordancewith the Act. The Central Government may allow registration for social objectives with specific terms and conditions. It also specifies that the Central Government has the authority to regulate services closely connected to broadcasting networks and broadcasting services. These regulations encompass eligibility criteria, terms, conditions, and fees.
Furthermore, there are general obligations for broadcasters and network operators. They are required to transmit programs in compliance with specified terms and conditions, ensuring that their services adhere to the Programme Code and Advertisement Code. The broadcasting services should not interfere with authorized telecommunication systems and must meet specific interference standards. Operators are also expected to comply with government orders and directions, use equipment meeting government standards, and provide information upon request. Different rules can be made for different types of broadcasters and network operators, allowing for tailored regulations based on the nature of their operations.
This chapter also mandates the compulsory transmission of specific channels. Also, guidelines for providing Platform Services may be issued for different types of broadcasting network operators. The provisions for the suspension, cancellation and renewal of registration are provided. Also, there is provision forappeals against the orders passed under this chapter. Applicants have the right to appeal registration-related decisions to the Appellate Authority, ensuring a fair and transparent process. The appeal must typically be made within 30 days, with exceptions considered for valid reasons.
Part A of the broadcasting regulations in India outlines the procedures for broadcasters, cable, and satellite network operators. Broadcasters need approval for transmitting programs, while network operators must register to operate. The broadcasters, cable, and satellite network operators are required to fulfill specified obligations, maintain accurate subscriber data etc. These regulations aim to ensure compliance with standards, fairness, and the smooth functioning of broadcasting services in the country.
Part B applies to radio broadcasting networks. Individuals or organizations intending to operate a radio broadcasting network must apply for a letter of intent. Permission may be granted subject to prescribed clearances and requirements.
Part C focuses on internet broadcasting networks. Unified license holders can provide IPTV services by intimating the Central Government. OTT (Over-the-Top) broadcasting service providers meeting the prescribed threshold must provide an intimation to the Central Government.
Part D applies to terrestrial broadcasting networks. Persons intending to operate a terrestrial broadcasting network must apply for permission. Permission may be granted subject to prescribed terms and conditions and clearances.
(c) Chapter III- Content standards, accessibility and access controlmeasures
This chapter discusses certain rules and guidelines related to broadcasting services in a simplified manner. The important sections of this chapter include:
Section 19 : It states that any program or advertisement broadcasted through television, radio, or other broadcasting services must follow certain codes called the Program Code and the Advertisement Code. These codes may vary depending on the type of broadcasting service.
Section 20 : It explains that individuals or organizations broadcasting news and current affairs content online, such as through websites, social media, or news portals, need to follow the Program Code and advertisement code mentioned in Section 19.
Section 21: The government can provide guidelines to broadcasters to classify their programs into different categories based on factors like content, theme, and target audience. These categories will have relevant ratings and descriptors.
Broadcasters must prominently display the program’s classification at the beginning of the show, allowing viewers to make informed decisions.
Section 22: Broadcasting network operators should implement access control measures for programs that are classified as appropriate for restricted viewing (e.g., adult content). These measures aim to ensure that only the intended audience can access such content.
Section 23 : The Ministry of Information and Broadcasting may issue Accessibility Guidelines to make broadcasting services more accessible to persons with disabilities. These guidelines may include measures such as adding subtitles, audio descriptions for the blind, sign language translations, and using accessible applications. Broadcasters may be required to make a certain percentage of their programs accessible within a specified time frame. If there is a violation of the accessibility guidelines, penalties may be imposed on the broadcaster or broadcasting network operator.
(d) Chapter IV- Regulatory Structure
In this chapter, the regulatory structure for broadcasting content is outlined. The aim is to ensure that broadcasters and broadcasting network operators comply with the rules regarding content and address any complaints or grievances related to content violations that may arise.
According to this chapter, every broadcaster or broadcasting network operator must establish a Content Evaluation Committee (CEC) with members from various social groups, including women, child welfare, scheduled castes, scheduled tribes, minorities, and others as specified. The Government can define the CEC’s size, quorum, and operational details. The broadcaster must inform the government and disclose CEC members’ information on their website.
Broadcasters are only allowed to air programs certified by the CEC, except for specific programs exempted by the government. The CEC’s certificates must include prescribed details and be displayed as specified. These provisions will come into effect 180 days after the Act’s enforcement.
There are three main components of the regulatory structure defined under this chapter:
Self-regulation by broadcasters and broadcasting network operators:
Broadcasters and network operators must appoint a grievance redressal officer to handle complaints about content violations. They are also required to be members of a self-regulatory organization (SRO) established for this purpose.
Additionally, they must set up mechanisms for filing and addressing complaints and make information about these processes easily accessible.
Self-regulatory organizations:
SROs are bodies formed by broadcasters and network operators or their associations. These organizations, once registered with the government, are responsible for addressing grievances related to content violations that haven’t been resolved by the broadcasters or network operators within a specific time frame. They also handle appeals filed by complainants against the decisions made by broadcasters or network operators. SROs provide guidance and advisories to their members to ensure compliance with the broadcasting rules.
Broadcast Advisory Council: The government establishes a Broadcast Advisory Council, consisting of independent experts and government representatives, to oversee the implementation of the regulations. The Council receives complaints related to content violations and reviews them. Based on their examination, they make recommendations to the government. The government then considers these recommendations and issues appropriate orders and directions.
The Council can form review panels, as needed, to assist with its functions. These panels are assigned specific cases or appeals and provide their recommendations, which are considered as recommendations of the Broadcast Advisory Council.
(e) Chapter V: Inspection and Penalties
Chapter V of the Act deals with inspections and penalties for broadcasting networks and services. The Central Government and its authorized officers have the right to inspect these networks and services. Operators must provide necessary equipment for interception or monitoring as directed. Seized equipment can be confiscated unless operators demonstrate compliance.
Companies and their responsible individuals can be held liable for contraventions, unless they prove lack of knowledge or due diligence. Penalties can be advisory, censure, warning, and monetary penalties. Non-compliance with the Program and Advertisement Codes can result in removal of objectionable programs, orders, apologies, off-air periods, or cancellation of registration. The government can also prohibit programs or operations for public interest or national security reasons. There are provisions for imprisonment and/or fines for few serious offences.
The quantum of monetary penalty and Fine are dependent on the financial capacity of the entity or individual. The maximum Penalty/Fine in case of unregistered entities and Major category are 100%. However, the same is restricted to the 50%, 5% and 2% respectively to the Medium, Small and Micro Category.
(f) Chapter VI: Miscellaneous
The various provisions covered under this chapter include:
Sharing of infrastructure:
This section (Section 37) allows multiple broadcasting service providers to voluntarily share infrastructure and equipments. They need to apply to the Central Government with details of the infrastructure proposed to be shared and the roles and responsibilities of the entities involved. The government will review the application and approve or reject it based on certain criteria and conditions.
Right of way for cable operators: (Section 38)
This section defines the right of way for broadcasting networks and outlines the procedures and conditions for facility providers to seek permission to establish broadcasting networks on public and private properties. The key points are:
a) Definitions: It clarifies terms like “facility provider,” “public entity,” and “public property.”
(b) Right of Way on Public Property: Facility providers can apply to public entities to seek permissions for right of way on public property for broadcasting networks. The public entity must process the applications promptly and grant permission subject to prescribed administrative expenses and compensation.
(c) Right of Way on Other Properties: Facility providers can seek right of way on non-public properties by entering into agreements with the property owners. The facility provider must restore the property if any damage occurs during the establishment of the broadcasting network
(d) Non-discriminatory and Non-exclusive Grant: Any person providing right of way must do so in a non-discriminatory and, if possible, non-exclusive manner.
(e) Broadcasting Network Distinct from Property: Facility providers have no ownership of the property where the broadcasting network is installed. The network is not subject to property-related claims or encumbrances.
(f) Power of Central Government to Establish Common Ducts and Cable Corridors: The government may establish common ducts or cable corridors for broadcasting networks and provide open access to facility providers on prescribed terms.
(g) Removal, Relocation, or Alteration of Broadcasting Network: Property owners may require the facility provider to remove, relocate, or alter the network when dealing with the property, and they must compensate the facility provider if applicable.
(h) Notice for Exercising Legal Right: Any person intending to exercise a right that may damage or interfere with the broadcasting network must provide prior notice to the facility provider or relevant authorities.
(i) Dispute Resolution: District Magistrates have exclusive powers to resolve disputes related to this section, and their decisions are final.
Provisions for emerging and future broadcasting technologies: This section(Section 39) empowers the Central Government to make the provisions of this Act applicable to broadcasting networks that use new technologies and methods.
The government can do so if these networks meet certain criteria, are similar to existing broadcasting networks, and operate as systematic business, professional, journalistic, or commercial activities.
Registration for providing audience measurement services: This section (Section 40) states that individuals or organizations intending to provide audience measurement services must apply for registration to the registering authority. The authority will consider eligibility criteria and conditions before granting registration. Applicants can appeal a refusal by the registering authority to the Appellate Authority.
Transitional provision: This section (Section 41) ensures a smooth transition or individuals or organizations already registered or granted permission under previous broadcasting regulations. They will be deemed registered, approved, or notified under this Act. However, they may need to provide a notification to self certify compliance with the provisions of this Act within a prescribed time period.
Application of other laws not barred: This section (Section 42) clarifies that the provisions of this Act are in addition to, and not in derogation of, other existing laws related to various areas such as drugs, cosmetics, trademarks, cinematography, consumer protection, and telecommunications.
Power to make rules: This section (Section 43) grants the Central Government the power to make rules for the effective implementation of the provisions of this Act. The rules can cover a wide range of matters, including registration, eligibility criteria, obligations, penalties, and other details related to broadcasting services and networks.
Power of the Central Government to issue guidelines: This section (Section44) authorizes the Central Government to issue guidelines to fulfill the objectives of this Act. Existing guidelines issued before this Act will be deemed valid, but any inconsistency with this Act will be void. Penalties specified in these guidelines will be applicable.
Delegation of powers by the Central Government: This section (Section 45) allows the Central Government to delegate its powers and functions under this Act, except for rule-making powers and certain specified powers, to designated officers.
Rules to be laid before Parliament This section (Section 46) mandates that all rules made under this Act must be presented before both Houses of Parliament for a period of 30 days. If both Houses agree to modify or reject the rule, it will be modified accordingly or become void, but previously taken actions based on the rule will remain valid.
Power to remove difficulties: This section (Section 47) empowers the Central Government to make provisions through orders published in the Official Gazette to overcome any difficulties in implementing the provisions of this Act. These orders need to be laid before both Houses of Parliament.
Savings and repeal: This section (Section 48) addresses the continuity of rules and notifications made under the previous Cable Television Network (Regulation) Act, 1995. Such rules and notifications will be deemed to have been made under this Act, unless they are inconsistent. The Cable Television Network (Regulation) Act, 1995, will be repealed on a notified date. Actions taken under the repealed act will be considered as if done under this Act, and pending proceedings will continue.
It appears that the Bangalore traffic police is generating bogus challans for whatever reasons they have found.
I today observed a challan against one of the vehicles known to me. The challan is not backed by any evidence. The violation is indicated as DIGITAB violation which means that it has been captured by some device. Then there has to be an image available which is not provided.
I request the Commissioner to check if there is any duplicate numbered vehicle or is it simply a scam?
The Ministry of Information and Broadcasting released a draft of a new Bill titled Broadcasting Services (Regulation) Bill 2023on November 10. This Bill is meant to replace the Cable Television Networks (Regulation) Act 1995 and will regulate the OTT services. Like the Privacy legislation, this legislation is likely to be the next war front for the Digital media led by George Soros cult in India. I will be surprised if the Bill see the light of the day before 2024 elections. However since the debate has started, the academic circles need to examine the proposals and record their views.
The Indian Telegraph Act, 1885, The Indian Wireless Telegraphy Act 1933, Telegraph Wire Unlawful Possession Act, 1950, Cable Television Networks (Regulation) Act 1995 and The Telecom Regulatory Authority of India Act, 1997.
The Bill caused the political disruption with the Ministry of Information Broadcasting and Ministry of IT having serious issues on overlapping powers and a turf war. The Bill was therefore a non-starter. Subsequently, in 2006 another draft Bill called Broadcasting Services Regulation Bill 2006 was released as a draft. The 2001 (communications Convergence Bill) Bill was under BJP’s Vajapayee Government when Pramod Mahajan was the Minister and the 2006 Bill was under the UPA Government .
The provisions of these Bills therefore had the blessings of both the Governments though for political expediency we can expect the Congress of 2023 to mount a scathing attack on the present Bill as having a “Chilling Effect” on freedom of speech. Already Wire, Medianama and other Soros group media have started their campaign. Though the Government has called for public comments, this would perhaps remain an academic debate.
With this background this latest Billhas been released for public debate. Though the chances of the Bill being passed are remote, given the flurry of activities in the Ministries before the next election, even the impossible may be possible if Modi wants discipline in the media before the 2024 elections.
We need to look at this legislation therefore with respect.
It appears that the 2023 Bill is largely a replica of the 2006 Bill of the UPA and hence it would be interesting to see how the opposition counters the Bill. The schedule of penalties and the suggested self regulatory systems are additions.
1. Consolidation and Modernization: It addresses a long standing need of consolidating and updating the regulatory provisions for various broadcasting services under a single legislative framework. This move streamlines the regulatory process, making it more efficient and contemporary. It extends its regulatory purview to encompass broadcasting over-the-top (OTT) content and digital news and current affairs currently regulated through IT Act, 2000 and regulations made there under.
2. Contemporary Definitions and Future-Ready Provisions: To keep pace with the evolving technologies and services, the bill introduces comprehensive definitions for contemporary broadcasting terms and incorporates provisions for emerging broadcasting technologies.
3. Strengthens the Self Regulation Regime: It enhances self-regulation with the introduction of ‘Content evaluation committees’ and evolves the existing Inter-Departmental Committee into a more participative and broader ‘Broadcast Advisory Council’.
4. Differentiated Programme Code and Advertisement Code: It allows for a differentiated approach to Programme and Advertisement Codes across various services and require self-classification by broadcasters and robust access control measures for restricted content.
5. Accessibility for Persons with Disabilities: The bill addresses the specific needs of persons with disabilities by providing for enabling provisions for issue of comprehensive accessibility guidelines.
6. Statutory Penalties and Fines: The draft Bill introduces statutory penalties such as: advisory, warning, censure, or monetary penalties, for operators and broadcasters. Provision for imprisonment and/or fines remains, but only for very serious offenses, ensuring a balanced approach to regulation.
7. Equitable Penalties: Monetary penalties and fines are linked to the financial capacity of the entity, taking into account their investment and turnover to ensure fairness and equity.
8. Infrastructure Sharing, Platform Services and Right of Way: The bill also includes provisions for infrastructure sharing among broadcasting network operators and carriage of platform services. Further, it streamlines the Right of Way section to address relocation and alterations more efficiently, and establishes a structured dispute resolution mechanism.
While discussing the DPDPA 2023 compliance in the industry, the standard response we derive is “We are already GDPR Compliant which is a “Gold Standard” for Privacy and hence Indian data privacy law can only be a subset of GDPR and we should be already compliant with it”.
This is a myth and a risky assumption.
DPDPA 2023 is applicable for Digital Personal Data and not for other forms of Personal Data and one has to look for additional provisions under the Constitution or other laws to understand certain aspects of responsibilities of an industry on Personal Data Protection in toto.
Though GDPR has the principles of “Consent”, the “Legitimate Interest” concept of GDPR and the non-consent based legal basis acceptable under GDPR are not the same as the “Legitimate Use” concept under DPDPA.
Similarly the rights protected under GDPR for a Data Subject are not the same as the rights provided to data principals under DPDPA.
The Right of Grievance Redressal and Right of Nomination provided under DPDPA 2023 are not available under GDPR.
The “Duties” of Data Principal are not provided under GDPR.
The concept of “Data Fiduciary” under DPDPA is different from the concept of “Data Controller” under GDPR.
The recognition of minors and other persons with legal guardians is handled differently under DPDPA.
The powers of the DPB are different from the powers of the Supervisory authority under GDPR.
The penalties under DPDPA 2023 are different from penalties under GDPR.
The impact of GDPR on Data Processors is direct where as in DPDPA it is only through the contract with the Data Fiduciary with direct liability under ITA 2000.
GDPR has a strict Data Localization where as DPDPA 2023 is flexible.
DPDPA 2023 respects the sovereignty of different countries and recognizes the redundancy of making a Data Fiduciary/Controller/Processor liable under two different data protection laws. It has provisions to enable segregation of obligations. GDPR does not respect the sovereignty of the other countries and tries to extend its hegemony over other countries.
In view of these and other differences, compliance to GDPR cannot be considered as compliance with DPDPA 2023. In fact we can positively state that “Compliance to GDPR is non compliance of DPDPA 2023).
In an expected move, the Bengaluru police under the current political dispensation prevailing in the State decided not to consider the e-mail threat made to 68 schools recently as amounting to a terrorist activity and decided to book the case under other offences such as “Impersonation” etc.
“The FIRs have been filed under sections 66 C and 66 D of the Information Technology Act, 2008, and for criminal intimidation and malicious acts to outrage religious feelings under sections 506 and 295A of the Indian Penal Code (IPC). The police have not invoked Section 66 F of the Information Technology Act which covers cyber terrorism in the FIRs on account of the hoax nature of the bomb threats”.
If one looks at the above photograph, it is clear that thousands of parents of the 68 schools as well as many others went through a trauma arising out of the email threat and a situation where the community was put in terror had been created.
The email indicated among other things that it was a revenge for the terrorists who were killed during 26/11 serial bomb attack in Mumbai, declared “We Will Kill You”. It also urged “When you meet with non-believers, you chop off their heads”.
The Police Commissioner of Bengaluru as a professional needs to justify how these statements can be brushed aside as “hoax”. The email cannot be considered only as a bomb threat and since no bombs were found, it cannot be classified as a hoax. The other threats are serious life threatening messages and will remain in the memory of the community fo ever and create an atmosphere of fear in the community.
It is clear that the hands of the Police are being tied by political pressure to misinterpret the threat and ignore it. If in future any untoward incident occurs in the manner in which it is indicated here, the Police Commissioner will be exposed to the charge of dereliction of duty due to political expediency.
I wish that the political supporters of the Government who belong to the threatened community including the God fearing Mr D K Shivakumar, the DCM, come out openly to condemn this brazen threat. Even the responsible persons within the community that is threatening (such as the speaker of the assembly), should express their outright condemnation of the contents of the e-mail.
The High Court of Karnataka should also suo-moto take recognition and initiate a trial of the case to pass necessary orders treating this as a national threat situation to be handled by NIA and CBI and not the state police.
Silence of these persons can only be considered as a tacit support to the terrorists out of fear or conviction.
I also take this opportunity to urge the professionals in India of all communities to take a stand against such incidents and be vocal. They should not hide behind the pseudo secularism and excuse of being non communal etc. Remaining silent on such occasions is a communal decision and lack of commitment to the welfare of the community.
