Airtel Defers the Implementation of Differential Charges for Internet Calls as TRAI Plans for Consultation on OTT

As per recent media reports, Bharti Airtel has decided to defer its plans to charge at substantially higher rates for the Voice-over-Internet-Protocol (“VoIP”) calls over its network. The decision to charge higher rate has been rolled back by the telecom giant for the time being.

Airtel had last week introduced higher charges for such VoIP calls by limiting the data plans only for internet browsing. Please refer our previous post Airtel Users to Pay Hefty Charges for Internet Calling for details on the decision to charge higher.

It appears that the move is in furtherance to press reports suggesting that Telecom Regulatory Authority of India (“TRAI”) would be issuing a consultation paper on proposed regulations for the over-the-top (“OTT”) players and services. News reports indicate that Airtel in a statement has stated “in view of the news reports that a consultation paper will be issued shortly by TRAI on issues relating to services offered by OTT players including VoIP, we have decided not to implement our proposed launch of VoIP packs”. Further, Airtel also expressed its hope that the interests of all stakeholders and viability of the sector will be taken into consideration during the consultation.

In the meantime, press reports have quoted the TRAI Chairman Rahul Khullar as stating that the TRAI would issue the consultation paper on OTT players in January 2015, observing that it was now high time to appropriately to address issues relating to OTT. The TRAI may also define the concept of net neutrality as part of the consultation process.

Furthermore, there have also been reports suggesting that Airtel had selectively promoted its own VoIP service, Airtel Talk, to foreign callers in recent past. In India the most used VoIP platforms include Skype, Viber and Line.

Subsequent to the introduction of the VoIP plans by Airtel, which also attracted large criticism and complaints on social media networks (such as Facebook and Twitter); the Minister for Communications and Information Technology Ravi Shankar Prasad announced that the Government will look into the issue.

While, the introduction of such charges is in violation of the principles of net neutrality, however currently there is no specific policy or regulatory framework in India which mandates the telecom operators to adhere to net neutrality.

Net Neutrality in India: Telecom Regulator Examining Net Packages of Telcos

As per various media reports, the Telecom Regulatory Authority of India (“TRAI”) is currently examining the internet packages offered by telecom operators offering access to Facebook and WhatsApp. The operators under the scanner are reported to be Airtel and Uninor, the Indian operator of Norway’s Telenor.

This seems to have come in furtherance to the recent debate on net neutrality, which is also backed by the United States of America President Barack Obama. Our previous post on the net neutrality debate can be accessed here. The issue under consideration is whether such data packages offered by telecom operators amount to a preferential access for such services. These services are referred to as over-the-top (“OTT”) services by the industry.

The TRAI would soon be seeking inputs from operators to explain how the packages have been worked out, in order to determine if the process involves blocking equal access to other content providers.

Presently, the ‘net neutrality’ concept is not specifically defined or regulated under the Indian telecom regulatory regime. However, generally net neutrality implies no blocking, no prioritisation and no throttling of any content on a network. The exponential growth in data services for mobiles and the global debate on net neutrality corresponding to the surge in OTT services seems to have prompted the TRAI to examine the data packages of the operators.

As per media reports, TRAI conclusions from the study of the data packages will have a bearing on the issues to be raised by it in a consultation paper to be floated soon. This is seen as firm backing for net neutrality, a concept also being discussed in the United States in the recent times.

US President Obama Calls for Strict Net Neutrality Rules

The lack of a clear policy ensuring net neutrality is worrying countries, even the developed ones. Recently, the United States of America President, Barack Obama has called upon the Federal Communications Commission (“FCC”) to issue and implement strict rules for net neutrality.

The principle of net neutrality is against the practise of the broadband companies blocking or intentionally slowing down the content or from allowing the content providers to pay for a fast lane to reach the consumers. It is critical in ensuring a free and open internet environment. In line with the working of telephone lines, where there is no distinction in charges for calls to another operator’s network, restaurant, school etc.; the net neutrality also envisages the situation of uniform charges for all traffic.

In the absence of net neutrality rules, the internet service providers (“ISPs”) would be at liberty to and also inclined towards shaping the internet traffic, giving preferential access to services and websites. The belief of some ISPs is that there should be charges for the services consuming more bandwidth, such as YouTube etc.

President Obama is of the view that the entities connecting a person to the world have special obligations not to exploit the monopoly they enjoy over the internet access. Media reports suggest that he is of the opinion that the net neutrality regulations are to ensure that neither the cable company nor the phone company acts as a gatekeeper, restricting what a person does online. The previous rules of the FCC were struck down in January this year by a Federal Appeals Court.

As in the United States, India too does not have the concept of net neutrality. There have been various consultations initiated by the Telecom Regulatory Authority of India (“TRAI”) in this regard; however the rules ensuring net neutrality have not been formulated till date. Although currently, the networks in India do not differentiate between the traffic flowing through their networks to provide different quality levels of service, but the practice of revenue sharing arrangements with large internet companies like Facebook, Yahoo, Google etc. is becoming common.

It is feared that for the Indian start-ups, banking on its internet infrastructure, net neutrality becomes vital to ensure an effective competitive market, by eliminating possibility of large companies to shell-out more money for preferential access.

Facebook Issues the Government Requests Report for January-June 2014 – India Tops the List

Facebook recently issued the Global Government Requests Report. The report was the 3^rd such report issued by Facebook and pertains to the period of January to June, 2014. An interesting revelation made by the report is that India ranks number 1 for the restriction of access to information over the social media among all the countries, excluding the United States of America. Facebook restricts the access to some information pursuant to requests from Government and other agencies to act against hate-content on social media web platforms. The complete report for the said period can be accessed here.

India is also the largest user base for Facebook, outside of the United States of America. There are over 100 million Facebook users in India. The Government Requests Report for India pertaining to the first 6 months of 2014 can be accessed here. The key figures of the report are as follows:-

Country	Requests for User Data	User Accounts Referenced	Percentage of requests where some data produced	Content Restrictions
India	4,559	5,958	50.87%	4960

From the report it is understood that the access was restricted, upon the content being reported primarily by law enforcement officials and the India Computer Emergency Response Team under local laws prohibiting criticism of a religion or the state.

In a comparison to the earlier edition of such reports, the number of requests from India has gone up by around 26% viz-a-viz July-December 2013 and around 40% from January-June 2013. Whereas, there has been a global increase of about 24% in the number of requests and in the amount of content restricted of about 19% globally.

Facebook has stated in the report “We respond to valid requests relating to criminal cases. Each and every request we receive is checked for legal sufficiency and we reject or require greater specificity on requests that are overly broad or vague”.

Law Commission’s National Consultation on Media Laws

Inaugurating the ‘National Consultation on Media Laws, the Minister of Communications and Information Technology and Law and Justice, Mr. Ravi Shankar Prasad said “As far as the legal architecture is concerned, as far as my view is concerned, I am very clear. Self-regulation should be the mode. When I say self-regulation, it is not an off-the-cuff remark. It carries a lot of responsibility, it carries a lot of meaning”. The independence of media was termed as ‘non-negotiable’ by Mr. Prasad, while stressing on the unequivocal need for ensuring the freedom of media.

The consultation was organised by the Law Commission of India, together with the National Law University, Delhi. This was a step ahead in the consultation on Media Laws, which the Law Commission initiated in May this year, under the chairmanship of Justice AP Shah.

The consultation process comprised of 5 panels on various burning issues concerning the media laws, which were:-

1. Self Regulation v. Statutory Regulation: Does the news media need structural regulation?;
2. Contempt of Court and Reporting of Court and Legislative Proceedings;
3. Privacy, Defamation and Trial by Media;
4. Paid News, Opinion and Exit Polls; and
5. Social Media.

The panelists comprised of distinguished individuals from the judiciary (such as Justice R.V. Raveendran, Justice Rajiv Sahai Endlaw and Justice Ravindra Bhat), advocates, members of government departments, media editors, journalists and others. Besides, the audience also comprised of lawyers and media persons, among others.

Mr. Prasad expressed his deep concerns on the issue of paid news and also stressed on the importance of social media. He urged the Law Commission through the consultation to find a bridge between the freedom of press and right to privacy, while stressing on the right to privacy being an integral part of Article 21 of the Constitution of India.

Justice AP Shah was of the view “Freedom of press lies at the fundamental of democracy. A free media enable critical scrutiny, uncover truth, and generate public opinion”, since the media plays a key role in uncovering the truth and giving voice to the population.

Talking about the incidents concerning Section 66A of the Information Technology Act, 2000 the Communications and Law Minister stated “There are concerns around Section 66A of the Information Technology Act. I have given clear instructions that this be used only under extreme circumstances. Article 19 (1) (a) gives freedom of expression, but Article 19.2 gives reasonable restrictions. In the extreme event that a website has to be blamed for communal issues or national security issues, there is a committee and a final vetting by secretary. This should be very, very rare.”

With the panelists hailing from different walks of professions interconnected and vital for the blossoming of the media laws, the discussions that ensued were interesting and informative. Different perspectives of exploring the possibility of legislating or modifying the legislations were demonstrated.

It would be definitely interesting to see the transformation and evolution of the laws regulating and governing the media amidst the rampant use of technology by the masses, which is evident from the fact that 70% of Google traffic outside the United States is from India, also observed by Mr. Prasad during his address.

China Stalls Cyber Crime Cooperation upon U.S. Hacking Charges

The cooperation between the United States of America and China on fighting cyber crime is reported to have come to a halt. The U.S. and Chinese officials were working together to combat certain types of online crime, including money laundering, child pornography and drug trafficking, however, the cooperation has now been suspended.

The reason for this development is the recent U.S. indictment of the Chinese military officials on hacking charges. There has been no decline in efforts of the Chinese hackers’ to break into U.S. networks.

In May, the Justice Department had charged 5 Chinese military members with hacking systems of U.S. companies to steal trade secrets. Subsequent to this Beijing suspended a Sino-U.S. working group on cyber issues. China has denied the charges and has in turn accused Washington of massive cyber spying.

The indictments, including the hacking charge the U.S. filed against specific foreign officials, strain the complex commercial relationship between the two countries and create problems for some U.S. technology companies doing business in China.

Beijing has responded with a promise to investigate all U.S. providers of important IT products and services, though it has not specified the move was a direct retaliation.

The Chinese media also lashed out at U.S. firms including Google, Apple, Yahoo, Cisco Systems, Microsoft and Facebook, with allegations of spying and stealing of secrets.

This incident emphasises the fragility of efforts to ease tensions and mutual accusations of hacking and Internet theft between China and the United States, at the expense of the security areas, where the nations had reached some understanding.

Internet Giants Google and Facebook are required to meet Europe’s Data Protection rules: European Union

In a statement issued by the European Union (“EU”) on privacy and data protection, multinational internet firms, Google and Facebook and any other company based outside of the European Union must necessarily comply with the Data Protection rules in force in the Europe. This comes in the light to tighten the grip over the privacy laws, acquiring prominence in the wake of revelations of the United States of America spying in Europe.

The Article 29 of the Data Protection Working Party vowed to investigate if Google refused to abide by a 2013 decision of the European Court of Justice in the matter of Google Spain v. Gonzalez et al, where it was held that the national data protection legislation of Europe is applicable to Google, when it sets up an office in a Member State which orientates its activity towards the inhabitants of that State. Earlier in the year, a German court had ruled that Facebook was subject to German data protection law, even if its European headquarters are located in Ireland. Thus, it is clear that all companies operating on European soil have to apply the rules.

Presently, non-European companies with operations in Europe comply with data protection laws of the domicile / base country, which some say leads to ‘jurisdiction shopping’, whereby businesses set up shop in countries with a more relaxed attitude to privacy. But, under the new rules all EU countries will have the same data protection laws, meaning companies will no longer be able to challenge which laws apply to them in court.

Furthermore, the Article 29 of the Data Protection Working Party also advises web search engines “to put in place user-friendly and pedagogical tools for the exercise by their users of their right to request the deletion of the search results links containing information relating to them. More generally, search engines should ensure compliance with the opinion of the Working Party on data protection issues related to search engines.”

The reform package, approved by the European Parliament in March, has divided EU governments and still needs work to become a law. A decision that remains to be taken is to assist the companies to avoid dealing separately with the 28 different data protection authorities of the EU. The EU governments are also concerned about a foreign data protection authority taking binding decisions that the said EU governments would have to enforce.

The data protection working party concluded by stating that the dispute is part of the wider context of ongoing exchanges between Europe’s privacy regulators and Google.

Facebook wins $873M judgment against sex, drugs spammer

This is a welcome news at least now we know that even though we may be vunrable to SPAM on Facebook but the courts would take a tough stand against the perpetuators of such nusiance.

“Facebook has a won an $873 million judgment against a Canadian man who bombarded the popular online hangout with sexually explicit spam messages.

The victory, sealed with a judge’s order issued last Friday, probably won’t yield a windfall for privately held Facebook, whose revenue this year is expected to range between $250 million and $300 million.

Court records indicate the alleged spammer, Adam Guerbuez of Montreal, has been difficult to find since Facebook sued him four months ago. But Facebook is hoping the size of the judgment will scare off other spammers who might be tempted to target the Palo Alto-based company’s audience of more than 120 million users.”

How far it prevents others from misusing facebook features still remains to be seen.

Full news report can be accessed at the following news paper site. Click here