A leaked internal email from Meta surfaced online on Thursday, raising concerns about the potential inclusion of over-the-top (OTT) applications, like WhatsApp or Signal, within the regulatory framework of the Telecommunication Bill 2023. The email from Meta’s policy head highlights the lack of clear directives on this matter.
The Telecommunications Bill, 2023, was presented in the Lok Sabha on December 18, following the conclusion of the consultation process for its 2022 counterpart. Stakeholders in the OTT sector are apprehensive about whether the new legislation goes beyond just overhauling of the Indian Telegraph Act, 1885, Indian Wireless Telegraphy Act, 1933, and The Telegraph Wire (Unlawful Protection) Act, 1950.
So is OTT covered in the Bill?
Ekta Rai, advocate at Delhi High Court said it is important to look at the definition of the Bill before delving into discussions on OTT.
The definition of telecommunication in the Telecommunication Bill, 2023 reads ‘transmission, emission or reception of any messages, by wire, radio, optical or other electro-magnetic systems, whether or not such messages have been subjected to rearrangement, computation or other processes by any means in the course of their transmission, emission or reception.’
The definition of telecommunication also defines a message as ‘any sign, signal, writing, text, image, sound, video, data stream, intelligence or information sent through telecommunication.’
The inclusion of ‘data stream’ in the definition implies that messaging apps or email services and cloud services may fall within the purview of telecom regulation.
“This definition can easily include OTT in its ambit. Therefore unless the Bill categorically excludes the OTT services, the same cannot be considered out of the scope of the application of the provisions of this Bill. This means that if at all OTT is included in the Bill, by implication or otherwise, it will violate net neutrality, because some URLs may be treated differently than other URLs being accessed on the internet, It will considerably change the manner in which data is currently consumed,” said Rai.
According to her, authorisation may also mean payment of regulatory fees. This will also affect the business of the OTT platforms.
“Additionally, if the OTT is added later, several provisions of the Bill will be required to be tweaked, as the OTT and telecommunication, technically are fundamentally different platforms. One being a telecom infrastructure and other being a service offered through the said infrastructure,” she added.
Kunal Sharma, partner at Singhania & Co breaks down definitions further.
The Telecommunications Bill 2023 provides broad definitions for expressions like ‘telecommunication service’ and ‘telecommunication network’.
The former expression is defined as encompassing diverse technologies, including wire, radio, optical, and other electromagnetic systems. This breadth could potentially capture a wide range of online services, including Over-the-Top (OTT) platforms according to Sharma.
Similarly, the expression ‘telecommunication network’ is defined in a technology-neutral manner, encompassing various forms of networks used for service delivery.
“Again, this definition could potentially extend to internet-based networks utilised by some OTT platforms,” he said.
Overall, according to experts the broad definitions within the Bill can significantly extend its influence and consequences for diverse service providers, notably impacting Over-the-Top (OTT) platforms.
Sharma cited some examples to explain.
“For instance, issue licenses for the services. Further, the Bill grants the government extensive regulatory powers over telecommunication services, including data security, interception, content blocking, and quality of service. While not explicitly targeting OTTs, these powers could potentially apply to them if classified as telecommunication services under the Bill,” he said.