Overview

1.1  Please describe the: (a) telecoms, including internet; and (b) audio-visual media distribution sectors in your jurisdiction, in particular by reference to each sector’s: (i) annual revenue; and (ii) 3–5 most significant market participants.

The telecommunication market can be split into three segments- wireless, wireline and internet services with a total subscriber base of 1198.5 million users in May 2021.India is one of the fastest emerging countries in terms of internet subscribers and is one of the biggest consumers of data worldwide. The gross revenue of the telecom sector stood at Rs. 68,228 crore (US$ 9.35 billion) in the third quarter of Financial Year 2021.

The media and broadcasting sector in the India is fast- emerging in consumer and advertising spends and is estimated to become a Rs. 4,00,000 crore (US$53.33 Billion) industryby 2025. The media and entertainment sector (now inclusive of the online video segment) received a total funding of US$ 877.8 million across 85 funding deals in FY20.

Furthermore, as per official government sources, the private access service providers hold 89.83% market share of the wireless subscribers. The major market participants in the telecom sector include Reliance Jio, Bharti Airtel Limited, Bharat Sanchar Nigam Limited and Vodafone Idea Limited. The major broadcasting players include Zee Entertainment, Sony Entertainment, Star-Disney, Doordarshan, and NDTV.

1.2  List the most important legislation which applies to the: (a) telecoms, including internet; and (b) audio-visual media distribution sectors in your jurisdiction and any significant legislation on the horizon such as the regulation of online harms, regulation of social media or artificial intelligence (please list the draft legislation and policy papers).

Telecom industry is regulated by the following central legislations: The Indian Telegraph Act, 1885 (Telegraph Act); TheWireless Telegraphy Act, 1933 (WT Act);The Telecom Regulatory Authority of India Act, 1997 (TRAI Act);The Information Technology Act, 2000 (IT Act). Additionally, there are several policies, circulars, notifications which are issued by the Department of Telecommunications (DoT), and the central government. The violations under this regime could also be made liable under the Indian Penal Code, 1860.

Audio-visual distribution is regulated under:The Cable Television networks (Regulation) Act, 1995; The Cinematograph Act, 1952;The Sports Broadcasting Signals (Mandatory Sharing with Prasar Bharati) Act, 2007;The Press Council Act, 1978, The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (IT Rules 2021). In re artificial intelligence, NITI AAYOG has released national strategy for adoption and deployment of AI in the country. The Consumer Protection (E-Commerce) Rules, 2020, have also been notified to regulate e-commerce entities and may also extend to social media platforms.

Separately, the Personal Data Protection Bill, 2019, is pending legislation and is aiming to provide a comprehensive framework for data privacy in the country.

1.3  List the government ministries, regulators, other agencies and major industry self-regulatory bodies which have a role in the regulation of the: (a) telecoms, including internet;  (b) audio-visual media distribution sectors; and (c) social media platforms in your jurisdiction.

The Ministry of Communications, DOT, TRAI, and the Ministry of Information and Broadcasting (MIB), along with the Ministry of Home Affairs, regulate the sector, which also relies upon the Telecommunications Engineering Centre (TEC) for standards. Audio-visual media distribution industry is regulated byMIB; the Central Board of Film Certification (CBFC).

Separately, self-regulatory bodies, namely, the Professional News Broadcasters Standards Authority, Internet and Mobile Association of India (IAMAI), the Indian Broadcasting Foundation, and the News Broadcasting Standards Authority, and the Broadcasting Content Complaints Council govern the sectors. Further MIB has notified the following bodies for IT Rules, 2021, compliance:

  • Confederation of Online Media (India) – Indian Digital Publishers Content Grievance Council
  • Web Journalists Standards Authority
  • Professional News Broadcasting Standards Authority
  • IAMAI- Digital Publisher Content Grievances Council

1.4  In relation to the: (a) telecoms, including internet; and (b) audio-visual media distribution sectors: (i) have they been liberalised?; and (ii) are they open to foreign investment including in relation to the supply of telecoms equipment? Are there any upper limits?

Under the Foreign Direct Investment (FDI) Policy, the telecom sector, as well as the broadcasting sector are both allowed to invite 100% investment, by automatic route. The DoT has amended the Unified License Agreement, to allow 100% FDI under the automatic route. Such investment will be subject to certain disclaimers, with an entity which resides in a country sharing a land border with India or where the beneficial owner of an investment into India is situated in or is a citizen of any such country can invest only under the government route.

News websites, portals, news aggregators can receive 26% FDI, through the government approval route, whereas 100% FDI is permitted in broadcasting carriage services.

2. Telecoms

2.1 Is your jurisdiction a member of the World Trade Organisation? Has your jurisdiction made commitments under the GATS regarding telecommunications and has your jurisdiction adopted and implemented the telecoms reference paper?

Yes, India is a member of the WTO, and has adopted the WTO Basic Telecommunications Reference Paper on Regulatory Principles. It has made specific commitments, as well as exclusions under the most favoured nation principle.

2.2 How is the provision of telecoms (or electronic communications) networks and services regulated?

The Telegraph Act regulates the establishment, maintenance and working of telegraphs, which enjoy a wide definition scoping in every aspect of communication. The provisioning of communication networks and services is regulated under this legislation, read with the Indian Wireless Telegraphy Act, 1993- which focuses on wireless communication, and the IT Act which is dedicated for electronic communications.

There are specific licenses, authorizes sought from the concerned authorities to be able to provide infrastructure; business process outsourcing services, or related services.

2.3 Who are the regulatory and competition law authorities in your jurisdiction? How are their roles differentiated? Are they independent from the government? Which regulator is responsible for social media platforms?

TRAI is the regulatory authority for telecommunications, and broadcasting. The Competition Commission of India (CCI, established under the Competition Act, 2002) is a statutory body, working autonomously to enforce the legislation, to promote competition and prevent activities that have an appreciable adverse effect on competition in India.

2.4 Are decisions of the national regulatory authority able to be appealed? If so, to which court or body, and on what basis?

The Telecom Disputes Settlement and Appellate Tribunal (TDSAT) is the appellate authority against any decision or order of TRAI. Appeals against orders and decisions of the CCI lie before the National Company Law Appellate Tribunal, and the Supreme Court of India.

In terms of appeals, Orders given by the Tribunal (on telecom, broadcasting, and tariff matters) can only be appealed before the Supreme Court (only on the substantial question of law). On cyber-related issues, however, the Order can be appealed before the High Court. Separately, legislations and decisions of the government, departments, can be moved before the jurisdiction High Court/s and the Supreme Court, by way of writ petitions, constitutional challenges.

2.5  What types of general and individual authorisations are used in your jurisdiction? Please highlight those telecom-based authorisations needed for the installation and/or maintenance of infrastructure?

The Unified License (UL) was introduced by the DoT in 2013, converging multiple license terms for service providers. The authorization under the UL provides for:

  1. Access Service;
  2. National Long-Distance Service;
  3. International Long-Distance Service;
  4. Global Mobile Personal Communication By Satellite Service;
  5. Public Mobile Radio Trunking Service;
  6. Commercial Very Small Aperture Terminal Closed User Group;
  7. INSAT Mobile Satellite System-Reporting Service; and
  8. Resale of International Private Leased Circuit Service

 

2.6  Please summarise the main requirements of your jurisdiction’s general authorisation.

Only an entity incorporated in India, can apply for UL, and must additionally comply with the applicable caps imposed under the FDI regime. Along with the applicable fees, bank guarantee must also be furnished.

The licensee is also required to comply with additional standards prescribed for technology, services, by the TEC, under IT Act, TRAI advisories, likewise.

2.7 In relation to individual authorisations, please identify their subject matter, duration and ability to be transferred or traded. Are there restrictions on the change of control of the licensee?

UL is valid for a period of 20 years, from the date of authorization. A virtual network operator holds a license valid for 10 years.

A license under UL may be transferred to another, where the transfer is: (i) in accordance with the terms and conditions of the Tripartite Agreement (signed between the Licensor, here DoT, the Licensee and Lender); (ii) owing to an amalgamation/restructuring sanctioned by the authorities; (iii) prior written consent/no objection of the DoT has been obtained; and, only where (iv) all outstanding dues have been paid by the transferor company. While there are no express provisions barring a transfer, each such instance is evaluated by DoT prior to the transfer.

2.8 Are there any particular licences or other requirements (for example, in relation to emergency services) in relation to VoIP services

Basic Service Licensee, Unified Access Service Licensee, Cellular Mobile Telecom Service licensees and Unified License (access service) are allowed to provide internet telephony services. These licences further permit thatwhile providingInternet Telephony Service, the licensee may interconnect Internet Telephony network with PSTN/PLMN/GMPCS network/s. Other Service Providers are allowed to use VoIP services, when they have valid services available from an authorized telecom service provider.

2.9 Are there specific legal or administrative provisions dealing with access and/or securing or enforcing rights to public and private land in order to install telecommunications infrastructure?

The Indian Telegraph Right of Way Rules (RoW Rules), 2016, states that for installation of telecommunications infrastructure on public land, prior permission is required, and also guides on the procedure to be followed for the same. In respect of private land, governmental clearance is required, after valid checks with respect to compliance with local requirements (feasibility, fire-safety, etc.) have been met with.

2.10 How is wholesale interconnection and access mandated? How are wholesale interconnection or access disputes resolved?

Wholesale interconnection and access are governed by the UL. It requires the licensees to adhere to the prescriptions made by the regulatory authorities and concerned departments. Disputes arising out of these are to be resolved by the mechanism provided under the Telecommunications Interconnect Regulations, 2018.

2.11 Which operators are required to publish their standard interconnection contracts and/or prices?

The Telecommunication (Broadcasting and Cable) Services Register of Interconnection Agreements and all other such matters Regulations, 2019, has been published by TRAI; and it requires every broadcaster to publish reference interconnect offers on its website.

2.12 Looking at fixed, mobile and other services, are charges for interconnection (e.g. switched services) and/or network access (e.g. wholesale leased lines) subject to price or cost regulation and, if so, how?

Interconnection Usage Charges (IUC) are wholesale charges payable by a Telecom Service Provider (TSP) to another TSP for origination, transiting, or termination of the calls. There are certain charges which have been fixed earlier, which is subject to revision as per the latest consultation paper of TRAI, regarding review of IUC.

2.13 Are any operators subject to: (a) accounting separation; (b) functional separation; and/or (c) legal separation?

TRAI has mandated every service provider to execute and implement the accounting and reporting practices specified under the “Reporting System of Accounting Separation Regulations, 2016”.  There are no separate prescriptions for function or legal separation.

2.14 Describe the regulation applicable to high-speed broadband networks. On what terms are passive infrastructure (ducts and poles), copper networks, cable TV and/or fibre networks required to be made available? Are there any incentives or ‘regulatory holidays’?

TRAI is responsible for regulation of high-speed broadband networks, and has achieved the same through several regulations, notifications, issued over time. The Quality of Service for Broadband Services Regulations, 2006 (as amended) is applicable to all service providers (public and private) who provide broadband services. There are several benchmarks in respect of service provisioning, restoration time, billing performance, service availability, and such other customer QoS parameters which have been set out for mandatory compliance by service providers. There are no regulatory holidays warranted to service providers, as such.

Only Infrastructure Providers (Category I) and telecom operators cancreate and share passive infrastructure; and only licensed telecom operators can create and share active infrastructure.

2.15  Are retail price controls imposed on any operator in relation to fixed, mobile, or other services?

TRAI has imposed controls on tariff in respect of prices relating to television channels; and there are orders with respect to the charges for national roaming, leased lines, and rural telephony. However, in view to ensure fair competition, the laws do not permit for discriminatory, predatory or hidden (non-transparent) tariffs to be set.

2.16 Is the provision of electronic communications services to consumers subject to any special rules (such as universal service) and if so, in what principal respects?

The TRAI Act, 1997 does not envisage handling of individual consumer complaints by TRAI. Additionally, the UL mandates that the services must be provided on a non-discriminatory basis, and appropriate systems to detect fraud must be in place by the Licensee. Other issues around tariff and quality of service are covered under separate regulations of TRAI.

2.17 How are telephone numbers and network identifying codes allocated and by whom?

The National Numbering Plan (NPP) caters to telephone numbering services. The DoT allocates numbering resources to the licensees as per the NPP, which is amended from time to time.

2.18 Are there any special rules which govern the use of telephone numbers?

The NPP sets out the numbering scheme, and a recent consultation paper issued by the TRAI is also proposing reconsiderations to the current system, which are pending deliberations.

2.19  Are there any special rules relating to dynamic calling line identification presentation?

Calling Line Identification Presentation (CLIP) services in India are regulated under the UL, and through TRAI notifications, regulations. A direction issued by TRAI mandated that charges for the CLIP facility cannot be made a compulsory item of tariff for the subscriber.

2.20  Are there any obligations requiring number portability?

Licensees are now mandated to afford mobile number portability services to their subscribers, as per such defined timelines that are prescribed by TRAI under the Telecommunication Mobile Number Portability Regulations, 2019 (MNP Regulations), as amended from time to time. The MNP Regulations have also provided for guidance on associated costs and generation of porting codes, and related.

3. Radio Spectrum

3.1 What authority regulates spectrum use?

The Wireless Planning and Coordination Wing (WPC) is the national radio regulatory authority, responsible for frequency spectrum management, and issues licenses to establish, maintain and operate wireless stations. WPC is divided into major sections like Licensing and Regulation, New Technology Group and Standing Advisory Committee on Radio Frequency Allocation (SACFA). SACFA makes the recommendations on major frequency allocation issues, formulation of the frequency allocation plan, making recommendations on the various issues related to International Telecom Union (ITU).

3.2 How is the use of radio spectrum authorised in your jurisdiction? What procedures are used to allocate spectrum between candidates – i.e., spectrum auctions, comparative ‘beauty parades’, etc.?

Spectrum in India is allocated based on the National Frequency Allocation Plan (NFAP) released by the WPC, as per ITU. Spectrum allocation in the country is on the basis of auctions, and with the intent to ensure that the allocation is fair, there is no comparative beauty parade which is adopted by the government, as such.

3.3 Can the use of spectrum be made licence-exempt? If so, under what conditions? Are there penalties for the unauthorised use of spectrum?  If so, what are they?

There are certain bands which are de-licensed, for the social benefits that can be attributed to them. As per the National Telecom Policy, 2012, the government is expected to identify [additional] frequency bands periodically, for exempting them from licensing requirements for operation of low power devices for public use. The NFAP identifies such wireless equipment which are exempt from licensing and are mostly for the use of very low power radio frequency devices.

In case of unauthorized use of spectrum, the licensing authorities generally issues show-cause notices, warnings to the infringing party. However, possession of any equipment which requires license, without any, could lead to commission of an offence, and may lead to penal sanction.

3.4 If licence or other authorisation fees are payable for the use of radio frequency spectrum, how are these applied and calculated?

A Spectrum Usage Charge (SUC) is payable by the licensees and is computed based on the Adjusted Gross Revenue, which is calculated on the basis of the service authorization, under such specific license terms. As of February 26, 2021, by order of the WPC, specified rates of SUC for the TSPs having License/ Authorization to provide Access Services in 700 MHz, 800 MHz, 900 MHz, 1800 MHz, 2100 MHz, 2300 MHz and 2500 MHz spectrum bands were prescribed.

3.5  What happens to spectrum licences if there is a change of control of the licensee?

Change in control will be governed by the conditions that are applicable to the service provider, as per the service type license. Separately, the DoT has guidelines prescribed for transfer/ merger of various categories of telecommunication licenses/ authorizations under the UL, which are to be complied with.

3.6  Are spectrum licences able to be assigned, traded or sub-licensed and, if so, on what conditions?

The Guidelines for Trading of Access Spectrum by Access Service Providers, 2015 (Spectrum Trading Guidelines 2015) and the Guidelines for Sharing of Access Spectrum by Access Service Providers, 2021 (Spectrum Sharing Guidelines 2021) govern trading and sharing of access spectrum; subject to compliance conditions imposed by the government of India. This shall be subject to licensing fees and dues paid.

Certain essential conditions of consideration are as below, inter alia:

  1. Spectrum trading is not permitted when licensees have spectrum in different bands.
  2. Only transfer of right to use spectrum is permitted, and not leasing.
  3. A non-refundable transfer fee of 1% of the transaction amount of the said trade/market price is payable on all spectrum trade transactions.
  4. Frequency swapping/reconfigurations within the assignments made to the licensee is not to be treated as trading.

 

4. Cyber-security, Interception, Encryption and Data Retention

4.1 Describe the legal framework for cybersecurity. Are there any specific requirements in relation to telecoms operators?

The cybersecurity provisions are essentially governed by the IT Act, and the rules framed thereunder. Under the licensing conditions, the service providers are required to ensure compliance with the laws which do not allow for transmission of obscene, objectionable, unauthorized, or infringing content. As intermediaries the service providers have further obligations under the IT Rules, 2021, to be complied with, for them to be able to avail safe harbour under the IT Act.

4.2 Describe the legal framework (including listing relevant legislation) which governs the ability of the state (police, security services, etc.) to obtain access to private communications.

The Telegraph Act, under Section 5(2), provides the basis for interception of telephone calls to the Central Government/ State Government, in the event of a public emergency or in the interests of public interest; subject to procedural safeguards codified in the rules. Further, the UL mandates the facilitation of any interception, decryption action, proposed by a government agency for any communication passing through the network of the licensee under exceptional circumstances.

An analogous capacity to intercept communications has also been provided by the Information Technology (Procedure and Safeguards for Interception, Monitoring and Decryption of Information) Rules 2009, (Decryption Rules) permits the competent authority to authorise an agency of the government to intercept, monitor or decrypt information generated, transmitted in any computer resource, subject to procedural safeguards.

The IT Rules 2021 have introduced traceability provisions, which can enable a government agency to decrypt any communication sent over messaging platforms in response to a court order or a decryption request issued under the Decryption Rules.

4.3 Summarise the rules which require market participants to maintain call interception (wire-tap) capabilities. Does this cover: (i) traditional telephone calls; (ii) VoIP calls; (iii) emails; and (iv) any other forms of communications?

As mentioned in the response to Question 4.2, in accordance with the UL obligations, the licensee would be required to maintain facilities (hardware/ software) to aid/permit/assist the interception, decryption action, proposed by a government agency for any communication/ “message” transmitted over the licensee’s network. This requirement is applicable upon all licensees, seeking to provide communication services (VoIP, emails, text, audio files) Additionally, a licensee seeking to provide internet access services, shall make all packets of information terminating into the Customer Premises Equipment available to the government, upon request under the Telegraph Act. The licensee must ensure that the technical facilities available can permit the monitoring of at least 480 simultaneous calls, with at least 30 calls for each of the designated security agencies. Presently, there are 10 designated security/ law enforcement agencies in India.

In addition to the monitored call/ communication, the licensee may be required to further submit call related information, as and when required by the security agencies in the format prescribed from time to time.

4.4 How does the state intercept communications for a particular individual?

This question has been responded to in our answers to Questions 4.2 and 4.3.

4.5  Describe the rules governing the use of encryption and the circumstances when encryption keys need to be provided to the state.

There is no comprehensive legislation which prescribes a common encryption standard. In this sector, the UL states that the licensee shall not employ bulk encryption equipment in its network.

The terms and conditions between the DoT and the Internet Service Providers have however, only permitted the utilization of encryption technologies up to 40 bits with RSA algorithms or its equivalent with no prior approval from the DoT.

4.6  Are there any specific cybersecurity requirements on telecoms or cloud providers? (If so, please list the relevant legislation.)

In addition to the regulatory landscape, outlined in our responses to Questions 4.1, 4.2 and 4.3, the government of India (GOI) has amended the UL terms in 2021, which mandates the telecom operators to only source their network gear/equipment from “trusted companies” post-June 15, 2021.

4.7  What data are telecoms or internet infrastructure operators obliged to retain and for how long?

Per the Security Conditions mentioned in the UL, a telecom operator must maintain all operation and maintenance command logs for a period of 12 months, which shall include the actual command given, who gave the command, when was it given with date and time and from where. For next 24 months the same information shall be stored/ retained in a non-online mode.

The Licensee must further maintain a record of all the software updates, changes made to the system, and must report any major upgradations to the DoT within 15 days from such upgradation of software. The licensee shall further be required to maintain a record of the supply chain of the products (hardware/software), obtained from the manufacturer/ vendor/ supplier at the time of procurement of the products.

5. Distribution of Audio-Visual Media

5.1  How is the distribution of audio-visual media regulated in your jurisdiction?

The applicable statute for regulation of audio-visual content is contingent upon the medium of distribution of such audio-visual content.  The distribution of cinematographic AV content is regulated under the Cinematographic Act, 1952 along with the allied rules thereunder. Furthermore, distribution of content across televisions is governed under the provisions of Cable Television Networks (Regulation) Act, 1995. Furthermore, MIB has formulated guidelines for the uplinking and downlinking of television channels, last modified in 2011. Additionally, the IT Act and the IT Rules, 2021, and related, are also required to be complied with for distribution of audio-visual media.

5.2 Is content regulation (including advertising, as well as editorial) different for content broadcast via traditional distribution platforms as opposed to content delivered over the internet or other platforms? Please describe the main differences.

The GOI regulates content broadcast over cinematographic content, distributed over theatres under the Cinematographic Act, 1952, and, the Cable Television Networks (Regulation) Act, 1995 (CATN Act) governs the operation of cable television networks in India. Additionally, advertising content must comply with the regulations devised by the Advertising Standards Council of India (ASCI), a non- statutory body, dedicated towards self-regulation of the advertising industry. Apart from this compliance with the IT Act, Copyright Act, 1957, and provisions of the IPC is also necessary.

For non-traditional delivery platforms, the IT Rules, 2021 lay down the compliance framework while borrowing from the aforementioned statutes, and set up a certification mechanism, and provide general principles for the digital content publishers’ compliance.  The IT Rules, 2021, also, provide for a mechanism of self- certification and voluntary content regulation, wherein the digital content publisher must analyse the content themselves and accord it with the necessary certification basis their analysis. Conversely, Central Board of Film Certification is tasked with the examination of all audio-visual content to be distributed over theatres, and certification of such movie, prior to their theatrical release.

5.3 Describe the different types of licences for the distribution of audio-visual media and their key obligations.

The distribution of media over television networks, isgoverned by the ‘uplinking’ and ‘downlinking’ guidelines issued by the MIB. Any Indian entity which meets the networth requirements can seek a license, and:

  • Uplinking is permitted in either of the C or Ku bands. However, uplinking in the Ku band is permitted through Indian satellites only.
  • Records of all content that is uplinked must be maintained for specified periods of time.
  • The uplinking entity must also set up a monitoring facility using which the regulatory authorities can monitor the programme/content uplinked

The obligations for a downlinking license are:

  • Submit annual accounts of its commercial operations in India.
  • Maintain a record of programmes downlinked for a period of 90 days.
  • Must ensure compliance with the necessary Programme Code, and other relevant and applicable rules and regulations in relation to the content.

 

5.4  Are licences assignable? If not, what rules apply? Are there restrictions on change of control of the licensee?

There is no express limitation upon the assignment/ transfer of a license to another entity, however any transfer will be subject to approval of the relevant regulatory authorities.

 

6. Internet Infrastructure

6.1 How have the courts interpreted and applied any defences (e.g. ‘mere conduit’ or ‘common carrier’) available to protect telecommunications operators and/or internet service providers from liability for content carried over their networks?

The IT Act provides protection to intermediaries, against liability for any third-party information, data, communication link hosted by them, solely if:

  • The intermediary’ role is limited to provision of access to a communication system over which such information was made available to third parties:
  • The intermediary does not initiate, determine or modify the information and its recipients, and:
  • The intermediary has observed due diligence, in accordance with the provisions of the IT Act and the IT Rules, 2021.

These foregoing conditions also become points of consideration for the Indian courts to examine the role/nature/business model of the intermediaries on a case-to-case basis. The IT Rules, 2021 have expanded on the compliance requirements for an entity to avail of the safe harbour protections, who are required to (a) respond to complaints within 24 hours in relation to a complaint about the exposure about the private area of an individual, (b) inform end users of their responsibility to adhere to the T&Cs, privacy policy and other website documents, at least once a year and (c) retain user registration information for a period of 180 days, after the cancellation/ withdrawal of their registration.

6.2  Are telecommunications operators and/or internet service providers under any obligations (i.e. to provide information, inform customers, disconnect customers) to assist content owners whose rights may be infringed by means of file-sharing or other activities?

The IT Rules 2021 mandate the intermediaries [telecommunication operators/ internet service providers] to inform the users of their responsibility to adhere to the website/ intermediary documents, failing which the intermediary can terminate the access of the user to the intermediary’s functions.

Furthermore, upon requisite court order, instructions by the appropriate governmental department/ regulatory agency only, the intermediary must remove access to any content which has been deemed unlawful, threatens the security, sovereignty of India or may have the offend public order, decency or morality of the society or may be inciteful in nature.

6.3 Are there any ‘net neutrality’ requirements? Are telecommunications operators and/or internet service providers able to differentially charge and/or block different types of traffic over their networks?

TRAI has been the primary organization which has carried the discourse on ‘net neutrality’ obligations in India. In 2016, TRAI released the Prohibition of Discriminatory Tariffs for Data Services Regulations, 2016, to restrict any service provider from entering into an agreement that would result in discriminatory tariffs, unless such transmission occurs in closed electronic communication networks, where no data is received or transmitted over the internet.

The DoT, in 2018, has gone a step ahead and released policy directives on net neutrality, to ensure Internet accessibility and availability without discrimination. Pursuant to the 2018 policy directives, the DoT amended the terms of multiple license agreements, to incorporate principles of non-discriminatory treatment by Internet Access Services.

6.4  Are telecommunications operators and/or internet service providers under any obligations to block access to certain sites or content? Are consumer VPN services regulated or blocked?

Service providers may be instructed to block access to certain sites which are so required under the law, or as per the instructions of the government. VPNs are not illegal, however, there could be legal consequences if a user engages in illegal activities by the way of VPN. The Parliamentary Standing Committee on Home Affairs has urged the central government to prohibit VPN services in India, as it suspects that several users / cyber criminals use VPN to avoid surveillance and continue to remain anonymous.

6.5 Is there any regulation applicable to companies that act as intermediaries in their role of connecting consumers with goods, services, content, or are there any proposals for such regulation?

The IT Rules 2021 aim to improve the transparency and accountability around the operation of intermediaries, including social media intermediaries (who now link users to goods, services – Facebook market, Instagram advertising, shopping). The rules require the intermediaries to implement a robust grievance redressal system, and the use of automated tools has been encouraged to remove content which may be grotesquely lewd in nature.

Furthermore, the Ministry of Consumer Affairs, in view of the rise in transactions on the e-commerce platforms in the last decade, saw fit to introduce provisions in relation to e-commerce activities within the Consumer Protection Act, 2019, an Act to provide for protection of the interests of consumers. Furthermore, the Consumer Protection (E-Commerce) Rules, 2020, scoped in transactional activity for goods conducted on any digital electronic network, inclusive of operations on a marketplace and inventory model of e-commerce, under its ambit.

E-commerce entities are required to display their proper credentials, notices, and dispute resolution pathway and are required to reveal any differentiated treatment which it gives or might give between goods or services or sellers of the same category. The E-Commerce Rules tie together with the IT Rules, 2021 by listing the set of compliances to be undertaken by a marketplace e-commerce website, to avail of the safe harbour protection, against any action brought due to the action of the sellers/ customers on such websites.

Furthermore, the GOI has notified the Telemedicine Practice Guidelines, aimed at the regulation of online consultation by registered medical practitioners, thereby imposing a level of responsibility upon the technology platform, which facilitates this consultation between medical professionals and patients.

 

Abhishek Malhotra, Managing Partner

Abhishek Malhotra, founding partner of TMT Law Practice and a member of the Bar Councils of Delhi and California, has two decades of experience in the primary areas of expertise, including intellectual property, commercial dispute resolution, technology, media and telecommunications.  He has advised clients in minimising legal risks and devising strategies for safeguarding against civil and criminal liability.  Mr Malhotra’s expertise in the media sector has resulted in a close alliance with production houses, broadcasters, and artists across the industry, and he is recognised as the “go to” professional for issues across broadcasting, music and sports.

He has contributed to the policy realm by providing inputs to Governments and think tanks on copyright issues, sports and fantasy gaming, digital health; and as a principal advisor to the Broadband India Forum on issues relating, inter alia, to satellite communication and data protection.  Mr Malhotra is a guest lecturer at the Indian Institute of Information Technology, the National Law School of India University, NUJS, Kolkata.  He regularly speaks at conferences and forums of repute, including the National Judicial Academy in Bhopal, US India Business Council, Indo-American Chambers of Commerce, World Intellectual Property Office, The Observer Research Foundation, MediaNama, FICCI and CII.

Bagmisikha Puhan, Associate Partner

Bagmisikha Puhan is a technology lawyer and is licensed to practice in India. She specialises in commercial transactions, telecommunications, privacy, healthcare and corporate law.  Prior to working with TMT Law Practice, Bagmisikha worked with Bharucha and Partners, and the enterprise risk management (privacy team) practice at Wipro Limited.  She regularly acts for multinational companies carrying out commercial transactions, advising on general corporate affairs, and has extensive experience in implementing data privacy measures at an enterprise level.  She has advised and assisted healthcare institutions, industry associations and premier think tanks working within the country in regulatory and policy matters.  Her representations range from multinational companies to start-up companies and industry associations.  She has worked with NITI AAYOG on issues related to healthcare and privacy.  Bagmisikha has provided inputs to central and state government agencies on geographical indications, healthcare and pharmaceuticals, telecommunications and broadcasting, privacy, digital gaming, etc.  She is part of the Executive Committee, the Regulatory Committee, and is the legal advisor to the Telemedicine Society of India.  She is a member of the Indian Society for Clinical Research.

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