Citing the fact that there are no regulatory norms to address privacy concerns of users of Over The Top (OTT) messaging services such as WhatsApp, Skype, Facebook etc, the government has informed the Supreme Court on Wednesday, April 5, that it would soon form regulatory guidelines similar to ones existing for all telecom operators, reported the Times of India.
This is all for "privacy concerns", of course.
The Department of Telecommunication (DoT) will be working with Telecom Regulatory Authority of India (TRAI) to devise this framework. The DoT’s argument is that OTTs are not subjected to any regulatory mechanism, despite the fact that they use the network of telecom service providers to reach customers, offer app-based products, and even compete by offering messaging and telephone facilities.
“Department of Telecommunication (DoT) is seized of the issue and shall finalise policy direction on various aspects of regulatory and licensing framework for OTT services and net neutrality after taking into account the TRAI recommendations on the subject,” the government said in its affidavit.
The document was submitted before the bench headed by Chief Justice JS Khehar, which was hearing a PIL filed by Karmanya Singh Sareen and Shreya Sethi, against WhatsApp’s new policy under which data of a user can be shared with Facebook.
According to Sareen and Sethi, the policy violates a user’s privacy and amounts to surveillance. The Supreme Court had earlier issued notices to WhatsApp, Facebook and TRAI to explain their legal positions over privacy concerns raised in a petition on the instant messaging application’s data-sharing policy.
Sareen and Sethi had challenged WhatsApp’s policy allowing the app to share information about its users with Facebook. Under the Indian law, any interception of a phone conversation without authorisation could result in cancellation of a telecom operator’s licence. But no such safeguards exist for WhatsApp users
According to Sareen, "OTT services are governed in some respect by the provisions of Information Technology Act, 2000 and are not subject to the same regulatory mechanism that is enforced on conventional voice and messaging services provided by telecom service providers".
The bench referred the petition to a five-bench judge and set the date of hearing for April 18. Facebook had objected to the reference, saying the dispute raised was between private entities entering into a contract with each other.
According to Madhavi Divan, the petitioner’s advocate, lack of privacy on WhatsApp not only violates the right to privacy, which is linked to the right to life under Article 21 of the Indian Constitution, but also stifles right of free speech protected under Article 19(1)A.
“WhatsApp projects itself as a free service and uses consumer data to sell ads on Facebook. In the case of an illiterate or semi-literate person, the person will not be able to gauge the broader implication of the terms of service. Fundamental rights cannot be barred away by gaining the consent of a user using a click. Regulations need to be put in place. Primarily because the consumers are not necessarily able to protect themselves,” Divan told Medianama.
“Over The Top services such as WhatsApp and Facebook are not covered under Indian laws. Unlike in the case of telecom or broadcasting, such services don’t fit the definition of telegraph under the Telegraph Act, 1869. So, they don’t need a license to work and aren’t regulated by laws,” she added.
Senior advocates Kapil Sibal and KK Venugopal, who appeared for WhatsApp and other OTT service providers, said there was no issue of privacy involved as it is a matter of contract between the user and OTT service provider. Sibal argued that no privacy violation is possible as messages sent on WhatsApp were end to end encrypted preventing even WhatsApp from reading them.
The cause of concern here is the fact that regulating OTTs and privacy, at least in this case, may clash with the idea of Net Neutrality. While February 2016 saw TRAI take a revolutionary decision, prohibiting telecom service providers from levying discriminatory rates for data, thus ruling in favour of Net Neutrality in India, the regulation of OTTs under the pretext of privacy is problematic. Yes, privacy is paramount; but the regulation of OTTs in the same spirit as that of telecom operators will be a short step away from regulating them as separate services.