(Continued from previous article)
In our previous discussions on the New Data Protection Bill, we had emphasised an approach to the construction of the act from the concept of “Rights” of the data principals.
It is good to see that the New Telecom Bill also has recognized the need for focussing on the users of Telecom services through Chapter 9 where two sections, section 33 and 34 deal with the Protection and Duties of users.
Section 33 enables a statutory backing for addressing “Spam” and includes “Do Not Disturb” register and complaints arising therefrom. Since the definition of Telecom Service Providers may go beyond the known Mobile service community and includes e-mail service providers and others, Section 33 may be interpreted as covering spam through E Mails. With the penalties that may be prescribed for contravention of the Act and the extension of liability on companies to the employees, Section 33 could be a provision that needs to be taken note of. In a way this also protects the “Privacy” of the recipient of the unsolicited messages. This needs close attention for compliance by organizations. We also need to look forward to the rules to ensure that genuine business communication cases are not needlessly hurt. This would link with the “Consent” to be obtained by organizations for sending marketing messages to individuals.
Section 34 is interesting as it is titled “Duty of users” and states as follows.
In the interest of the sovereignty, integrity or security of India, friendly relations with foreign states, public order, or preventing incitement to an offence, no user shall furnish any false particulars, suppress any material information or impersonate another person while establishing identity for availing telecommunication services.
This section casts a responsibility on the users of the services (including perhaps Twitter and WhatsApp) not to create fake accounts or falsify any attempts by the service provider to check the identity of the users.
The definition of “Telecommunication Services” under Section 2(21) states
“telecommunication services” means service of any description (including broadcasting services, electronic mail, voice mail, voice, video and data communication services, audiotex services, videotex services, fixed and mobile services, internet and broadband services, satellite based communication services, internet based communication services, in-flight and maritime connectivity services, interpersonal communications services, machine to machine communication services, over-the-top (OTT) communication services) which is made available to users by telecommunication, and includes any other service that the Central Government may notify to be telecommunication services;
This definition is broad enough to cover the Social Media Intermediaries and unless the Government provides a reference White List and Black List of services coming under the Act, there could be practical problems.
Hence users of any telecom services will be required to exercise due diligence and avoid the current practice of taking SIM cards in assumed names etc which could be construed as offences under this Act.
(To be continued)….
Naavi
