The Net Neutrality Debate in India

Apoorva - February 9, 2016 3 Comments

Yesterday, the Telecom and Regulatory Authority of India (TRAI) released the Prohibition of Discriminatory Tariffs for Data Services Regulations, 2016.  These regulations prohibit Telecom Service Providers from charging different tariffs from consumers for accessing different services online.  A lot of debate has taken place around network (net) neutrality in India, in the past few months.  This blog post seeks to present an overview of the developments around net neutrality in India, and perspectives of various stakeholders. Who are the different stakeholders in the internet space? To understand the concept of net neutrality, it is important to note the four different kinds of stakeholders in the internet space that may be affected by the issue.  They are: (i) the consumers of any internet service, (ii) the Telecom Service Providers (TSPs) or Internet Service Providers (ISPs), (iii) the over-the-top (OTT) service providers (those who provide internet access services such as websites and applications), and (iv) the government, who may regulate and define relationships between these players.  TRAI is an independent regulator in the telecom sector, which mainly regulates TSPs and their licensing conditions, etc., What is net neutrality? The principle of net neutrality states that internet users should be able to access all content on the internet without being discriminated by TSPs.  This means that (i) all websites or applications should be treated equally by TSPs, (ii) all applications should be allowed to be accessed at the same internet speed, and (iii) all applications should be accessible for the same cost.  The 2016 regulations that TRAI has released largely deal with the third aspect of net neutrality, relating to cost. What are OTT services? OTT services and applications are basically online content.  These are accessible over the internet and made available on the network offered by TSPs.  OTT providers may be hosted by TSPs or ISPs such as Bharti Airtel, Vodafone, Idea, VSNL (government provided), etc.  They offer internet access services such as Skype, Viber, WhatsApp, Facebook, Google and so on.  Therefore, OTT services can broadly be of three types: (i) e-commerce, (ii) video or music streaming and, (iii) voice over internet telephony/protocol services (or VoIP communication services that allow calls and messages).  Prior to the recent TRAI regulations prohibiting discriminatory tariffs, there was no specific law or regulation directly concerning the services provided by OTT service providers. How is net neutrality regulated? Until now, net neutrality has not directly been regulated in India by any law or policy framework.  Over the last year, there have been some developments with respect to the formulation of a net neutrality policy.  TRAI had invited comments on consultation papers on Differential Pricing for Data Services as well as Regulatory Framework for Over-The-Top Services (OTT).[i],[ii]  A Committee set up by the Department of Telecommunications (DoT) had also examined the issue of net neutrality.[iii] Internationally, countries like the USA, Japan, Brazil, Chile, Norway, etc. have some form of law, order or regulatory framework in place that affects net neutrality.  The US Federal Communications Commission (telecom regulator in the USA) released new internet rules in March 2015, which mainly disallow: (i) blocking, (ii) throttling or slowing down, and (iii) paid prioritisation of certain applications over others.[iv]  While the UK does not allow blocking or throttling of OTT services, it allows price discrimination. What do TRAI’s 2016 Regulations say? The latest TRAI regulations state that: (i) no service provider is allowed to enter into any agreement or contract that would result in discriminatory tariffs being charged to a consumer on the basis of content (data services), (ii) such tariffs will only be permitted in closed electronic communications networks, which are networks where data is neither received nor transmitted over the internet, (iii) a service provider may reduce tariff for accessing or providing emergency services, (iv) in case of contravention of these regulations, the service provider may have to pay Rs 50,000 per day of contravention, subject to a maximum of Rs 50 lakh, etc.[v] It may be noted that, in 2006 and 2008, TRAI had suggested that the internet sector remain unregulated and non-discriminatory (net neutral).[vi][vii]What are some of the key issues and perspectives of various stakeholders on net neutrality? TSPs and ISPs:  TSPs invest in network infrastructure and acquire spectrum, without getting a share in the revenue of the OTT service providers. Some have argued that the investment by TSPs in internet infrastructure or penetration levels would diminish if they are not permitted to practice differential pricing, due to a lack of incentive. Another contention of the TSPs is that certain websites or applications require higher bandwidth than others.  For example, websites that stream video content utilise much more bandwidth than smaller messaging applications, for which the TSPs need to build and upgrade network infrastructure.  The Committee set up by DoT had recommended that the TSPs may need to better manage online traffic so that there is better quality of service for consumers and no network congestion. Further, the Committee also said that in case of local and national calls, TSP (regular calling) and OTT communication services (calls made over the internet) may be treated similarly for regulatory purposes.  However, in case of international VoIP calling services and other OTT services, it did not recommend such regulatory oversight. Consumers and/or OTT service providers:  The Committee set up by the DoT said that the core principles of net neutrality (equal treatment and equality in speed and cost) should be adhered to.  It also said that OTT services (online content) enhance consumer welfare and increase productivity in many areas.  These services should be actively encouraged. In the absence of neutrality, the internet may be fragmented and not as easily accessible to those who are unable to pay for certain services. It has been said that discrimination of internet content by TSPs could be detrimental to innovation as the bigger market players would be able to pay their way out of being throttled.  This could potentially result in TSPs restricting consumers’ access to small-scale, but innovative or qualitative OTT services (restricting growth and innovation for start-ups too). Now that regulations regarding price discrimination are in force, we do not know whether TRAI or the government will enforce rules regarding other aspects of net neutrality.  Also, the extent to which these regulations would affect the business of TSPs and OTT service providers remains to be seen. [i] “Consultation Paper on Differential Pricing for Data Services”, the Telecom Regulatory Authority of India, December 9, 2015, http://www.trai.gov.in/WriteReaddata/ConsultationPaper/Document/CP-Differential-Pricing-09122015.pdf. [ii] “Consultation Paper on Regulatory Framework for Over-the-top (OTT) services”, TRAI, March 27, 2015, http://www.trai.gov.in/WriteReaddata/ConsultationPaper/Document/OTT-CP-27032015.pdf. [iii] “Net Neutrality, DoT Committee Report”, Ministry of Communications and Information Technology, May 2015, http://www.dot.gov.in/sites/default/files/u10/Net_Neutrality_Committee_report%20%281%29.pdf. [iv] “In the Matter of Protecting and Promoting the Open Internet: Report and Order on Remand, Declaratory Ruling, and Order”, Federal Communications Commission USA, February 26, 2015, http://transition.fcc.gov/Daily_Releases/Daily_Business/2015/db0403/FCC-15-24A1.pdf. [v] “Prohibition of Discriminatory Tariffs for Data Services Regulations, 2016”, TRAI, February 8, 2016. [vi] “Consultation Paper on Review of Internet Services”, TRAI, December 2006, http://www.trai.gov.in/WriteReaddata/ConsultationPaper/Document/consultation27dec06.pdf. [vii] “Recommendations on Issues related to Internet Telephony”, TRAI, August 18, 2008, http://www.trai.gov.in/WriteReadData/Recommendation/Documents/recom18aug08.pdf.

The Juvenile Justice Bill, 2015: All you need to know

Apoorva - December 18, 2015 6 Comments

The Juvenile Justice (Care and Protection of Children) Bill, 2015 is currently pending in Rajya Sabha and was listed for passage in the current Winter session of Parliament.  The Bill was passed by Lok Sabha after incorporating certain amendments, in May 2015.  Here is all you need to know about the Bill and key issues associated with it.  A PRS analysis of the statistics on incidence of crimes by children and conviction rates is available here.

Table 1: Juveniles between 16-18 years apprehended under IPC  
Crime

2003

2013

Burglary

1,160

2,117

Rape

293

1,388

Kidnapping/abduction

156

933

Robbery

165

880

Murder

328

845

Other offences

11,839

19,641

Total

13,941

25,804

Note: Other offences include cheating, rioting, etc.  Sources: Juveniles in conflict with law, Crime in India 2013, National Crime Records Bureau; PRS.  

Who is a juvenile as recognised by law? In the Indian context, a juvenile or child is any person who is below the age of 18 years.  However, the Indian Penal Code specifies that a child cannot be charged for any crime until he has attained seven years of age. Why is there a need for a new Bill when a juvenile justice law already exists? The government introduced the Juvenile Justice Bill in August 2014 in Lok Sabha and gave various reasons to justify the need for a new law.  It said that the existing Juvenile Justice Act, 2000 was facing implementation issues and procedural delays with regard to adoption, etc.  Additionally, the government cited National Crime Records Bureau (NCRB) data to say that there has been an increase in crimes committed by juveniles, especially by those in the 16-18 years age group. NCRB data shows that the percentage of juvenile crimes, when seen in proportion to total crimes, has increased from 1% in 2003 to 1.2% in 2013.  During the same period, 16-18 year olds accused of crimes as a percentage of all juveniles accused of crimes increased from 54% to 66%.  However, the type of crimes committed by 16-18 year olds can be seen in table 1. What is the new Bill doing? Currently, the Juvenile Justice (Care and Protection of Children) Act, 2000 provides the framework to deal with children who are in conflict with law and children in need of care and protection.  The Bill seeks to replace the existing 2000 Act and lays down the procedures to deal with both categories of children.  It highlights the two main bodies that will deal with these children, to be set up in each district: Juvenile Justice Boards (JJBs) and Child Welfare Committees (CWCs).  It provides details regarding adoption processes and penalties applicable under the law.  The Bill provides for children between 16-18 years to be tried as adults for heinous crimes.  The three types of offences defined by the Bill are: (i) a heinous offence is an offence that attracts a minimum penalty of seven years imprisonment under any existing law, (ii) a serious offence is one that gets imprisonment between three to seven years and, (iii) a petty offence is penalized with up to three years imprisonment. Currently, how is a juvenile in conflict with law treated? How is that set to change? Under the 2000 Act, any child in conflict with law, regardless of the type of offence committed, may spend a maximum of three years in institutional care (special home, etc.)  The child cannot be given any penalty higher than three years, nor be tried as an adult and be sent to an adult jail.  The proposed Bill treats all children under the age of 18 years in a similar way, except for one departure.  It states that any 16-18 year old who commits a heinous offence may be tried as an adult.  The JJB shall assess the child’s mental and physical capacity, ability to understand consequences of the offence, etc.  On the basis of this assessment, a Children’s Court will determine whether the child is fit to be tried as an adult. What did the Standing Committee examining the Bill observe? One of the reasons cited for the introduction of the Bill is a spike in juvenile crime, as depicted by NCRB data.  The Standing Committee on Human Resource Development examining the Bill stated that NCRB data was misleading as it was based on FIRs and not actual convictions.  It also observed that the Bill violates some constitutional provisions and said that the approach towards juvenile offenders should be reformative and rehabilitative. The Bill as introduced posed certain constitutional violations to Article 14, 20(1) and 21.  These have been addressed by deletion of the relevant clause, at the time of passing the Bill in Lok Sabha. What does the United Nations Convention on the Rights of the Child (UNCRC) say? What are the obligations on the signatory nations? The UNCRC was ratified by India in 1992 and the 2000 Act was consequently brought in to adhere to the standards set by the Convention.  The proposed Bill maintains this aim and seeks to improve implementation and procedural delays experienced by the 2000 Act.  The UNCRC states that signatory countries should treat every child under the age of 18 years in the same manner and not try them as adults.  While the 2000 Act complies with this requirement, the Bill does not.  However, many other countries who have also ratified the Convention try juveniles as adults, in case of certain crimes.  These countries include the UK, France, Germany, etc.  The United States is not a signatory to the UNCRC and also treats juveniles as adults in case of certain crimes. Under the Bill, what happens to a child who is found to be orphaned, abandoned or surrendered? The Bill addresses children in need of care and protection.  When a child is found to be orphaned, abandoned or surrendered he is brought before a Child Welfare Committee within 24 hours.  A social investigation report is conducted for the child, and the Committee decides to either send the child to a children’s home or any other facility it deems fit, or to declare the child to be free for adoption or foster care.  The Bill outlines the eligibility criteria for prospective parents.  It also details procedures for adoption, and introduces a provision for inter-country adoption, so that prospective parents living outside the country can adopt a child in India. Currently, the Guidelines Governing Adoption, 2015 under the 2000 Act, regulates adoptions.  Model Foster Care Guidelines have also recently been released by the Ministry of Women and Child Development. What are the penalties for committing offences against children? Various penalties for committing offences against children are laid out in the Bill.  These include penalties for giving a child an intoxicating substance, selling or buying the child, cruelty against a child, etc. Issue to consider: The penalty for giving a child an intoxicating or narcotic substance is an imprisonment of seven years and a fine of up to one lakh rupees.  Comparatively, buying or selling a child will attract a penalty including imprisonment of five years and a fine of one lakh rupees. It remains to be seen if the Bill will be taken up for consideration in this session, and if its passage will address the issues surrounding children in conflict with the law.

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A background to Section 66A of the IT Act, 2000

Apoorva - March 24, 2015 3 Comments

A few minutes ago, the Supreme Court delivered a  judgement striking down Section 66 A of the Information Technology Act, 2000.  This was in response to a PIL that challenged the constitutionality of this provision.  In light of this, we present a background to Section 66 A and the recent developments leading up to its challenge before the Court.  What does the Information Technology Act, 2000 provide for? The Information Technology (IT) Act, 2000 provides for legal recognition for transactions through electronic communication, also known as e-commerce.  The Act also penalizes various forms of cyber crime.  The Act was amended in 2009 to insert a new section, Section 66A which was said to address cases of cyber crime with the advent of technology and the internet. What does Section 66(A) of the IT Act say? Section 66(A) of the Act criminalises the sending of offensive messages through a computer or other communication devices.  Under this provision, any person who by means of a computer or communication device sends any information that is:

  1. grossly offensive;
  2. false and meant for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will;
  3. meant to deceive or mislead the recipient about the origin of such messages, etc, shall be punishable with imprisonment up to three years and with fine

Over the past few years, incidents related to comments,  sharing of information, or thoughts expressed by an individual to a wider audience on the internet have attracted criminal penalties under Section 66(A).  This has led to discussion and debate on the ambit of the Section and its applicability to such actions. What have been the major developments in context of this Section? In the recent past, a few arrests were made under Section 66(A) on the basis of social media posts directed at notable personalities, including politicians.  These  were alleged to be offensive in nature.  In November 2012, there were various reports of alleged misuse of the law, and the penalties imposed were said to be disproportionate to the offence.  Thereafter, a Public Interest Litigation (PIL) was filed in the Supreme Court, challenging this provision on grounds of unconstitutionality.  It was said to impinge upon the freedom of speech and expression guaranteed by Article 19(1)(a) of the Constitution. How has the government responded so far? Subsequently, the central government issued guidelines for the purposes of Section 66(A).  These guidelines clarified that prior approval of the Deputy Commissioner or Inspector General of Police was required before a police officer or police station could register a complaint under Section 66(A).  In May 2013, the Supreme Court (in relation to the above PIL) also passed an order saying that such approval was necessary before any arrest is to be made.  Since matters related to police and public order are dealt with by respective state governments, a Supreme Court order was required for these guidelines to be applicable across the country.  However, no changes have been made to Section 66 A itself.  Has there been any legislative movement with regard to Section 66(A)? A Private Member Bill was introduced in Lok Sabha in 2013 to amend Section 66(A) of the IT Act.  The Statement of Objects and Reasons of the Bill stated that most of the offences that Section 66(A) dealt with were already covered by the Indian Penal Code (IPC), 1860. This had resulted in dual penalties for the same offence.  According to the Bill, there were also inconsistencies between the two laws in relation to the duration of imprisonment for the same offence.  The offence of threatening someone with injury through email attracts imprisonment of two years under the IPC and three years under the IT Act.  The Bill was eventually withdrawn. In the same year, a Private Members resolution was also moved in Parliament.  The resolution proposed to make four changes: (i) bring Section 66(A) in line with the Fundamental Rights of the Constitution; (ii) restrict the application of the provision to communication between two persons; (iii) precisely define the offence covered; and (iv) reduce the penalty and make the offence a non-cognizable one (which means no arrest could be made without a court order).  However, the resolution was also withdrawn. Meanwhile, how has the PIL proceeded? According to news reports, the Supreme Court  in February, 2015 had stated that the constitutional validity of the provision would be tested, in relation to the PIL before it.  The government argued that they were open to amend/change the provision as the intention was not to suppress freedom of speech and expression, but only deal with cyber crime.  The issues being examined by the Court relate to the powers of the police to decide what is abusive, causes annoyance, etc,. instead of the examination of the offence by the judiciary .  This is pertinent because this offence is a cognizable one, attracting a penalty of at least three years imprisonment.  The law is also said to be ambiguous on the issue of what would constitute information that is “grossly offensive,” as no guidelines have been provided for the same.  This lack of clarity could lead to increased litigation. The judgement is not available in the public domain yet. It remains to be seen on what the reasoning of the Supreme Court was, in its decision to strike down Section 66A, today.

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