The New Telecom Bill-4-Offences

Continued from previous Article

Let us continue our discussion on the New Telecom Bill with the chapter on offences. The Act has listed the offences under a Schedule and provided the general aspects under Chapter 11.

The Scheduled list of offences have offences listed as “Cognizable” and “Non Cognizable” and all offences are “Bailable”. This provision over rides  Code of Criminal procedures. However no court can take cognizance of a non Cognizable offence except on a complaint made by the Central Government or the competent authority which may be notified by the Government. All offences shall only be tried by a Court not inferior to that of a Chief Metropolitan Magistrate or Chief Judicial Magistrate. Offences that are compoundable have also been identified in the schedule.

The liability for offences by companies can be extended to the employees who were responsible for the conduct  of the business.

The  list of offences are provided under Schedule 3.

While providing telecommunication service without a license is an offence punishable with imprisonment of 1 year, it is considered Cognizable and Non Compoundable. (fine upto Rs 50 lakhs)

Unauthorized access to a telecommunication network which could also qualify for an offence under ITA 2000 today again prescribes  an imprisonment of 1 year only though it is cognizable and non compoundable. (fine upto Rs 50 lakhs).

Wilful contravention that is detrimental to national security is another cognizable and non compoundable offence but with 3 years imprisonment and fine upto Rs 1 crore.

Possession or use of any equipment which can jam the telecom signals is an offence leading to 3 years imprisonment, cognizable and compoundable.

Wilful tampering of telecom equipment (which could even apply to cutting of Cable of a Cable TV supplier) could result in imprisonment of 1 year and would be a cognizable and compoundable offence.

Strangely “Causing Damage through negligence to telecommunication infrastructure or network” is listed for a fine of Rs 50 lakhs under “Offences” but without any imprisonment term.

Similarly, use by any person of a facility for which the supplier may not have license could lead to a fine of Rs one lakh but no imprisonment is prescribed.

Unlicensed possession of a wireless equipment could be a non cognizable and compoundable offence with only  a fine of Rs 50000/- for the first time and upto Rs 2 lakhs subsequently.

If a service provider impersonates a licensed entity, the offence would be punishable with 3 years imprisonment  and fine of Rs 50 lakhs. It would be cognizable and non compoundable.

Contravention of the provisions of Section 33 which covers spamming and violation of Donot Disturb provision could lead to a fine for  the first offence  upto Rs 50,000 and Rs 2 lakhs thereafter.  It would be non cognizable and compoundable.

Misrepresenting the identity availing a telecommunication service may be punished with an imprisonment upto one year and fine of Rs 50000/- with the offence being considered cognizable and compoundable.

In any other instance for which a specific penalty has not been provided, a fine upto Rs 25000/- may be imposed for the first time and Rs 50000/- thereafter.. It would be non cognizable and compoundable.

Thus we can observe that the description of offences in this Act differs from other Acts in certain respect and in some respects the punishment is less than what is applicable under ITA 2000 if we consider that access to a telecom equipment is equivalent to access to information residing there in.

Perhaps when the ITA 2000 is amended some of these changes like “Offence with fine only without imprisonment” may be included. Such contraventions go to the Magistrate Court as a criminal offence instead of the adjudication of a civil penalty. Whether this is advisable or not needs to be debated.

(To Be continued)

Naavi

 

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The New Telecom Bill-3-User Focus

(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

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The New Telecom Bill-2: Structure of the Bill

(Continued from previous article)

The New Telecom Bill (NTB) is divided into the following 10 different Chapters.

Chapter Sections Title
1 1 Short Title, Extent and Commencement
2 2 Definitions
3 3-11 Licensing, Registration, Authorization and Assignment
4 12-18 Right of Way for Telecommunication Infrastructure
5 19-22 Restructuring, Defaults in Payment and Insolvency
6 23-26 Standards, Public Safety and National Security
7 27-31 Telecommunication Development Fund
8 32 Innovation and Technology Development
9 33-34 Protection of Users
10 35-46 Miscellaneous
11 47-51 Offences
12 52-53 Repeal and Savings
Schedule 1 Spectrum Assignment for Government functions or purposes in view of public interest or necessity
Schedule 2 Broadcasting services requiring license as of the appointed date
Schedule 3 Offences and Penalties
Schedule 4 Penalties in breach of terms and conditions
Schedule 5 Telecommunication Infrastructure

Compared to the Communication Convergence Bill there is a distinct shift in the design of the Act from being “An act to set up a Communication Communication Commission” to a more practical face of the Act to address the issues that affect the users and protect the national interests.

It may be recognized that the TRAI Act and the Cable Television regulation Act have come into being since the old draft and hence some of the administrative issues were perhaps not required to be addressed now.

Let us take up the analysis of the Bill chapter by Chapter in the follow up articles.

Naavi

(continued)

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The New Telecom Bill-1.. Recalling the old Communication Convergence Bill 2001

The Government of India has started its process of setting up the updating of IT laws by releasing the draft of the Indian Telecommunications Act 2022 (ITCA2022).

Before we set about studying the details of the proposed Bill, we need to understand that the previous attempt to repeal Indian Telegraph Act 1885 , the Indian Wireless Telegraphy Act, 1933 and the Telegraph Wires (Unlawful Possession) Act, 1950 were made in 2001 when a draft Communication Convergence Act was proposed.

This act did not get passed and later was forgotten. Now the new Telecom Act appears to revive the attempt to replace these acts. Hence several provisions of this new Act are similar to provisions suggested in the Communication Convergence Act and it would be educative to refer to the earlier act to understand if there has been any substantial changes.

I am not sure if the copy of the earlier Bill is easily accessible by others and hence I am reproducing here the links to the old Bill and some of the articles that had been published at that time on naavi.com (now the domain is occupied by another company) and now available in naavi.org.

The copy of the Bill is here

Links to a few other Articles written at that time is given below.

A re-look at these may help us formulate views on the new Telecom Bill.

Communication Convergence bill-What’s Wrong?

Having seen some of the positive aspects of the bill, let’s turn our attention on some of the negative aspects  of the Bill that needs some attention…

 Suggestions made by Naavi.com 

Communication Convergence bill-What’s Right?

In the recent seminar held at Chennai to discuss the Communication Convergence Bill draft, many media passed highly critical comments on the draft. They held that the draft Bill is “Draconian” and should not be passed in its present form.

It is to be accepted that the purpose of law is to ensure that there is an equitable distribution of scarce resources in the society. If legislation does not “Regulate”, there will not be “Freedom for All” but only “Freedom for the Privileged”. It is one of the fundamental duties of any Government that society needs to be regulated if it has to remain “Civilized”.

Read what Naavi.com has to say on What’s Right in the Draft Bill? 

Convergence Bill- The Right of Way

One of the major concerns of the Infrastructure builders in the Telecom industry has been the delays in the implementation of  projects caused by legal hurdles in laying inter city and intra city cables. Hence the industry was keenly observing what was in store for them in the Communication Convergence Bill ……Read the Detailed Story

Convergence Bill- The Battle for the Spectrum

One of the important provisions of the Communication Convergence Bill refers to the policies regarding Frequency Spectrum Management covered under Chapter VI. …Read the Detailed Story

Communication Convergence Bill.. Offences and Penalties

A cursory glance of the provisions indicates that the law has been framed rather aggressively to protect the licensees and their facilities from being tampered with and misused by criminals. To that extent it is a welcome measure. However a thought may be spared to think whether the laws place too much of power in the hands of officials and police which can be misused for harassing honest Citizens who may appear to have strayed into  usage of facilities which may turn out to be unlawful…..Read the Detailed Story

Communication Convergence Bill..The Regulatory Framework

The Communication Convergence Bill (CCB) will operate a regulatory mechanism that will revolve around….Read the Detailed Story

Communication Convergence Bill..The objectives

One of the basic objectives of this Act is to provide for a regulatory mechanism, which facilitates convergence…..Read the Detailed Story

Communication Convergence Bill Draft is Now Here

The much awaited Communication Convergence bill draft is now available for public comments upto February 28. A Copy of the Bill is available Here.

Comments on the bill from naavi.com will be available through this column during the next few days.

The New Media Forum which was recently formed at Chennai would be conducting a seminar in Chennai shortly on Convergence bill and collecting the views from industry experts on the Bill. A consolidated memorandum would then be submitted to the Ministry regarding the comments of the forum.

Visitors who want to add their views are welcome to send their views to Naavi

Naavi

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Here is a new Avatar of Innovation. ..From Nothing Comes Some thing as FDPPI and Cyber Law College work together

( Pre-Registration for IDPS 2022 can be done here)

Innovation can come in many forms. When we arrange paid conferences or training programs, it is a common practice to provide “Early Bird Discount” to encourage interested persons to record their interest in the form of registering early. This will help the organizers to plan the resources properly.

But when organizations conduct valuable programs but offer it without a delegate fee, there is a problem in attracting early registrations. We need some innovative thought in incentivising early registrations.

FDPPI conducted its flagship program namely IDPS 2021 last year with 18 hours of intense information sharing. It was not merely a “Seminar” but was a serious “Knowledge Session”. FDPPI therefore claimed that more than Rs 18000/- worth training was being offered free.

About 1000 delegates might have attended the sessions at different points of time, some during the three  days of the program and some later. In total therefore FDPPI poured out Rs 18000×1000 (Rs 1.8 crores) worth of educational content to the community.

This year, FDPPI has planned to conduct IDPS 2022 over three days as virtual program between November 11, 12 and  13. Again more than 18 hours of live  content and around 18 hours of pre-recorded content are expected to be given to the community. This would mean around  36 hours of training .which should be worth more than Rs 36,000/- to each of the participants.

If about 2000 people take advantage of this tsunami of knowledge, the total value of training content offered to 2000 delegates is around Rs 7.20 crores.

It may look stupid that FDPPI is giving away this amount of data as a donation to the community. But that is FDPPI and it’s approach to public cause.

Having decided to make the program free for attendees, FDPPI faced a challenge on attracting early registrations so that the resource allocations can be done commensurate with the requirements.  But the challenge was how to incentivise early registration for a free program. The natural human tendency is to wait as long as possible to register for such programs, keep the organizers guessing and rush in the last minute. This could lead to disruptions since there could be limitations on the number of delegates even in a free program like IDPS 2022.

We presently anticipate a cap of 1000 simultaneous attendees though the registrations can be much higher. Hence there could be a need to prioritize or expand the capacity. This requires data and registrations could provide the data required to expand the capacity if required and hence early registrations are important for FDPPI.

FDPPI has now found a novel way to incentivise the early registrations.

Naavi and Cyber Law College are conducting a virtual event on October 17, 2022 at 4.00 pm (Upto 7.00 pm) to impart knowledge on the following:

a) Why ITA 2000 continues to be relevant now and even after the new Data Protection Act comes in
b) Provisions of CERT IN guidelines and need for compliance
c) Use of Compliance Management Rating (CMR) as an online evaluation of CERT In guidelines similar to DTS
d) Essence of Section 43A and how it is likely to transform when the new data protection Act comes in
e) Essence of ITA 2000 compliance and Risk management framework

This program is scheduled for October 17th because it is a day which Indian IT industry needs to always remember as the day when the Indian Digital Society was born. On October 17, 2000, the ITA 2000 was notified and gave recognition to electronic documents, digital signature, digital contract, digital evidence etc and therefore the “Digital Society” itself was recognized on that day.

Today when we are thinking of the Digital India and a Digital India Act which is a combination of the amended ITA 2000, the proposed Personal Data Protection Act and the Amended Telecom Bill, we have to remember  that all these new generation legislations are subordinate to the mother of all IT legislation which was ITA 2000. Even if ITA 2000 is completely replaced by a new law and killed, it is like the death of the originator of a family with age and the descendants are still recognized as  children or grand children of the old man. Similarly the new Telecom Act, the New ITA 2000 and the New PDPB 2019 are all descendants of ITA 2000.

Celebrating the birth  of the ITA 2000 is therefore still a respect that we need to give to  Information Technology Act 2000. (ITA 2000).

Hence Naavi/Cyber  Law College went about planning to conduct the program on October 17th under the title “Digital India Act in the making”, which it proposed to conduct charging a fee of Rs 500/-.

Sensing the opportunity to use this occasion to incentivise the pre-registrants of IDPS 2022, FDPPI has offered to sponsor the fee of all the pre-registrants as an incentive for their early registration.

Not to fall behind in this philanthropic act of FDPPI, Cyber  Law College has also decided to donate this money back to FDPPI as sponsorship of IDPS 2022.

Hence Registration to a free program of IDPS 2022 is providing a free pass to a Paid training program, an incredible but welcome development.

From “Nothing”,  comes “Something” thanks to the innovative thinking of FDPPI and Cyber Law College.

I therefore request interested persons to register in large numbers to IDPS 2022 and get a free entry to the webinar on October 17 . It would benefit the participants as well as FDPPI.

Naavi

 

 

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HC order Changed after dictation and uploading

A Very dangerous instance of “Unauthorized Access and Modification” of a Court order has been reported from Madras and it appears that the Supreme Court has been seized of the issue.

The case listing was as follows

As per the report the order was dictated in the open Court and later uploaded in the Court website. However subsequently when certified copy was provided, the order appeared different.

The difference was substantial since it is said that the first order required one party to deposit Rs 115 crores in a Bank and this was omitted in the subsequent order. Hence there is a prima facie financial benefit of Rs115 crores in the short term that occurred because of the change.

At this time, it is not clear if the Judges changed their order and did not inform the advocates or whether there was hacking of the earlier order.

Prima-facie there appears to be a Section 66 offence of unauthorized modification of the order on the server of the Madras High Court. One of the advocates has downloaded the order probably not Section 65B certified. But for a recognition of a criminal offence it is not necessary to stand on the formality of evidence being certified and the Police can investigate the server files and determine who made the modification.

If this was “Authorized”, then the judges who authorized the uploading of a revised order were perhaps in the wrong and needs to explain their action.

Naavi

Also Refer:

Verdictum.in

Copy of SC order

 

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