Consumer groups oppose Trai’s proposal on selective banning of OTTs

Financial Express, September 04, 2023

Apart from opposing levy of any form of network usage charges on over the top (OTT) apps as is being demanded by the telcos, several consumer groups have also voiced against the Telecom Regulatory Authority of India’s (Trai) proposal to selectively ban OTT apps in the event of a law and order problem.

As many as 11 consumer groups including the Consumer Unity & Trust Society (CUTS), Consumer Guidance Society, Consumer Guild, etc, have said that the proposal on selective banning coupled with regulating carriage and content would lead to overregulation and would create regulatory uncertainty in the Indian market.

“The proposed framework for selective banning of OTT applications and services will be a case of overregulation, and will have unintended consequences of quelling innovation,” said Amol Kulkarni and Shiksha Srivastava of CUTS in their submission on Trai’s paper on Regulatory Mechanism for Over-The-Top (OTT) Communication Services, and Selective Banning of OTT Services.

One of the concerns cited by these organisations is that OTT service providers are already regulated under the IT Act 2000 which will be replaced by the upcoming Digital India Act (DIA). Therefore, such consultations should form part of Digital India Act and any other additional consultations by regulators like Trai will also lead to overlap of regulatory structure.

“Such a consultation on selective banning should form a part of the consultations over the DIA. Moreover, the technicality of how the same can be undertaken remains unclear as well,” CUTS said, adding that if the process, including the appropriate authority to monitor such selective banning is not clearly laid down, it will result in regulatory uncertainty and further overregulation.

Separately, policy advocacy group Internet Freedom Foundation also expressed apprehension on the suggestion to selectively ban OTT services, given its ad-hoc, non-transparent, ambiguous, infeasible, and impractical application, and the negative consequences it may have of user choice and freedom.

“We brought to Trai’s attention that while malicious actors may find workarounds, citizens that rely on a daily basis on services using the internet at scale may not, and thus will be impacted.

Alternatively, those seeking workarounds without any malintent may also be criminalised,” said Tejasi Panjiar and Prateek Waghre of Internet Freedom Foundation.

Trai in July started the process to examine the issue of regulating OTT communication apps like WhatsApp, Facebook, Instagram, Telegram, etc. While the telecom regulator has sought stakeholders comments on issues such as definition of OTT apps, their licensing, privacy and security, etc, it also brought in the issue of selective banning of OTT services in the event of law and order problem against the present practise of shutting down complete internet services in a region.

Currently, if any kind of disturbance/violence hits an area, there is a complete shutdown of internet services there, thereby affecting internet banking services, health, education, etc.

The parliamentary committee had asked the government to examine if only those services such as OTT apps that are more vulnerable to be used by terrorists or anti-social elements can be selectively stopped.

However, analysts pointed out that it is not possible to enforce selective banning owing to dynamic IP addresses. A static IP address is an expensive proposition and consumers do not opt it.

The consumer advocacy groups said there needs to be a clearly laid out mechanism for such bans, and the rationale behind the decision will also be crucial.

“How the OTT apps are selected, the reason behind such selection and under what scenario will the ban be implemented, are all information which should be made available to the public. This should be done by way of a written public order, which should clearly lay down the rationale of the decision,” CUTS said.

Herein, it will be important to ensure that there are procedural safeguards, so that principles of natural justice are not violated and due process is followed, it added.

One of the suggestions by the consumer groups and other analysts is that instead of over-burdening OTT players, regulatory burden on telcos should be reduced which will not prompt them to demand any fee from OTTs.

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