TRAI releases consultative paper on whether to regulate WhatsApp, OTT services

The Telecom Regulatory Authority of India (TRAI) has released a consultation paper titled ‘Regulatory Mechanism for Over-The-Top (OTT) Communication Services and Selective Banning of OTT Services’ to outline and decide about regulation for messaging apps such as WhatApp, Telegram and Signal. Comments have been invited from the stakeholders by August 4, and counter-comments by August 18.

This decision comes after the Department of Telecommunication (DoT) had asked TRAI to reconsider its recommendations dated 14 September 2020 on the regulatory framework for OTT communications services and suggest a regulatory mechanism for selective banning of OTT services.

TRAI had recommended that “No regulatory interventions are required in respect of issues related with Privacy and security of OTT services at the moment”, but DoT said TRAI had not provided any detailed justification for recommending the same.

“In view of the humongous growth of OTT services in the recent past and these services having reached a matured stage, there is a need to holistically look into the various aspects of these services including regulatory, economic, security, privacy, and safety aspects,” stated DoT in a letter to TRAI.

DoT highlighted that its questions were aligned with para 2.2 of the National Digital Communications Policy -2018, which wanted to ensure “a holistic and harmonized approach for harnessing emerging technologies”.

In the selective banning of OTT service, the paper notes that shutdown of telecommunications or the internet can have significant ramifications for a country’s economy. It also disrupts critical services such as education and healthcare.

“In this context, the need for a regulatory framework for selective banning of OTT services under the Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017 or any other law, in force is required to be examined,” states the consultative paper.

TRAI has listed out 14 questions in the paper including definition of OTT, OTT communications services, classification of OTT services, and if such services should be brought under regulatory framework and what framework should be evolved to cover aspects like lawful interception, privacy, security, unsolicited commercial communication and license fee.

It will also look at whether there is a need for a collaborative framework between OTT communication service providers and the licensed telecommunication service providers. The paper intends to look whether there is a need to selectively ban specific websites apart from OTT services to meet the purposes and what class of websites should be included for this purpose.

The paper has asked what would be the technical challenges in selective banning of specific OTT services and websites in specific regions of the country for a specific period and if there is a need to put in place a regulatory framework for selective banning of OTT services under the Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017 or any other law, in force.

Responding to this notice, the Internet Freedom Foundation observed that this move coincided with Manipur High Court's directions to partially lift the internet ban in Manipur, after instituting safeguards like blocking social media websites and others that might be difficult to enforce.

In the consultative paper, TRAI notes that the in 2018, the government announced National Digital Communication Policy (NDCP) 2018. The policy “seeks to unlock the transformative power of communications networks - to achieve the goal of digital empowerment and improved well being of the people of India; and towards this end, attempts to outline a set of goals, initiatives, strategies and intended policy outcomes”.

In India, initial attempts to analyse the impact of OTT services were made in the year 2015 separately by TRAI and the DoT. On 27 March 2015, TRAI issued a consultation paper on Regulatory Framework for OTT  for consultation, but the result remained inconclusive. In the same year, in May 2015, DoT issued ‘Net Neutrality DoT Committee Report’. The report examined the OTT services, and their impact on the telecom sector.

In March 2016, DoT requested TRAI to provide its recommendations on net neutrality including traffic management and economic, security and privacy aspects of OTT services.  

TRAI held another consultation on the issue of ‘OTT Communication Services’ on 12 Nov 2018, where the authority had recommended that market forces should be allowed to respond without any regulatory intervention. Moreover, no regulatory interventions were required in respect to issues related to privacy and security of OTT services, TRAI had noted. It had suggested that the matter could be relooked when clarity emerges in international jurisdictions.

In September 2020, TRAI reiterated that it was not an opportune moment to recommend a “comprehensive regulatory framework for various aspects of services referred to as OTT services, beyond the extant laws and regulations prescribed presently”.

Questioning the need for this consultative paper, IFF underscored that TRAI’s consistent re-evaluation of this framework through recent consultations is concerning. “We have previously engaged with relevant entities on the issue of OTT licensing and regulation, and will continue to do so,” said IFF in a tweet