India – Telecommunications Bill Addresses Direct Marketing and Access Requests from Authorities | Allen & Overy LLP

On September 21, 2022, the Indian Ministry of Communications released a Telecommunications Bill 2022 for consultation (the Bill). In addition to licensing and regulatory issues, the bill also addresses direct marketing messages and the interception of messages on networks.

Direct marketing

The bill calls for the central government to enact measures to protect users from unsolicited communications (referred to by the bill as “specified messages”). These will be set out in separate regulations, but the bill includes requirements for prior user consent to receive certain messages or categories of messages; the establishment of a Do Not Disturb register and a mechanism for users to report messages received in violation of the rules.

Access by authorities

  • The central government, the state government or any agent specially authorized by one of them is expressly granted the power to intercept/order the disclosure of messages when the following conditions are met: (1) it there is a public emergency or for public safety; and (2) the person giving the order is satisfied that it is necessary or expedient to do so in the interests of the sovereignty, integrity or security of India, friendly relations with the foreign states, public order or the prevention of incitement to an offence. The reasons for such a decision must be recorded in writing;
  • Broad power is also reserved for the central government to “take necessary measures” if it is satisfied that it is necessary or expedient to do so, in the interest of the sovereignty, integrity or security of the country. India, friendly relations with foreign States, public order or the prevention of incitement to crime.
  • The bill also provides immunity from prosecution for any act done in good faith under the law. (art.39). However, it does not preclude judicial or other review of decisions made or the availability of remedies other than by lawsuit, suit or lawsuit.

For data transfers from the EEA to India under the GDPR, these powers are relevant for the following transfer impact assessments Schrem II.

The consultation is open until October 20, 2022.

The press release is available here, the draft law is available here and the explanatory memorandum here.

This entry is based on a customer alert prepared by aosphere.