Answer ... Article 19 of the Constitution guarantees the right to freedom of speech and expression. As such, telecoms, the Internet, media and social media are all covered by the freedom guaranteed under Article 19. The regulatory and legislative regime enacted by the legislature conforms to the parameters of the Constitution, and more particularly to Article 19. Telecoms, the Internet, media and social media are intertwined industries, so there is considerable overlap in the legislative framework for each of them.
(a) Telecommunications
The telecoms industry is regulated by, among others:
- the Telegraph Act, 1885;
- the Wireless Telegraphy Act 1933;
- the Telecoms Regulatory Authority of India (TRAI) Act 1997;
- the Information and Technology Act 2000; and
- the telecoms policy as amended from time to time – the latest being the National Digital Communications Policy 2018, which was approved in September 2018.
Further, the Department of Telecommunications (DOT) and the central government issue circulars and notifications, which also govern the sector.
Under Section 4 of the Telegraph Act, the central government has the exclusive privilege:
- to establish, maintain and use telegraphs; and
- to grant licences for establishing, maintaining or working a telegraph.
These powers are extensive in scope, given the broad definition of ‘telegraph’ under the Telegraph Act as:
any appliance, instrument, material or apparatus used or capable of use for transmission or reception of signs, signals, writing, images and sounds or intelligence of any nature by wire, visual or other electro-magnetic emissions, Radio waves or Hertzian waves, galvanic, electric or magnetic means.
(b) Internet
In addition to the TRAI Act, the Internet is primarily governed by the Information and Technology Act, 2000 and the rules made thereunder. The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021 (‘IT Rules’) were recently introduced to govern players such as:
- internet service providers (ISPs);
- online marketplaces;
- search engines; and
- telecoms and social media intermediaries.
ISPs are specifically regulated in the IT Act, 2000, where an ISP is referred to as a ‘network service provider’ and is defined as an intermediary under Section 79 of the act.
An ‘intermediary’ is defined in Section 2(w) as:
with respect to any particular electronic records, any person who on behalf of another person receives, stores or transmits that record or provides any service with respect to that record and includes telecom service providers, network service providers, internet service providers, web hosting service providers, search engines, online payment sites, online-auction sites, online market places and cyber cafes.
Further, Section 79 of the Information Technology Act, 2000 absolves intermediaries from liability in certain instances. Intermediaries are not liable for any third-party information, data or communication link made available by them in terms of the ‘safe harbour protection’. However, the extension applies only to those instances where the intermediary acts merely as a facilitator and plays no part in the creation or modification of the data or information. This is contingent upon the intermediary removing any unlawful content on its computer resource on being notified by the appropriate government or its agency, or upon receiving actual knowledge.
(c) Media
The media industry is governed by statutes such as:
- the Press and Registration Books Act 1867, which regulates printing presses and periodicals;
- the Telegraph Act 1885, which makes the government the sole licensing authority;
- the Copyrights Act 1957;
- the Trademarks Act 1999;
- the Cable Television Networks (Regulation) Act 1995; and
- the Cinematograph Act, 1952 and the rules framed thereunder.
(d) Social media
The recently notified IT Rules primarily govern social media. They define a ‘social media intermediary’ as “an intermediary which primarily or solely enables online interaction between two or more users and allows them to create, upload, share, disseminate, modify or access information using its services”. Under the previous regime, there was little regulatory oversight of social media platforms, which were merely required to notify users of the rules of use. However, under the recently notified IT Rules, social media platforms must now conduct due diligence to prevent unlawful content being posted on their platforms.