Lex Witness in association with the Trade & Regulatory Compliance Practice Desk at Saikrishna & Associates brings to you a detailed analysis on select updates and notifications.
AN OVERVIEW On 24th December 2023, the Telecommunications Bill, 2023 received the President of India’s assent after passage in both houses of the parliament and became a law i.e., The Telecommunications Act, 2023 (“Telecom Act”). The Telecom Act has now become the prevailing law for the development, expansion, and operation of telecommunication services and telecommunication networks, assignment of spectrum, and related matters. The Telecom Act will replace the existing legal framework governing the telecommunication sector comprising the Telegraph Act, 1885 and the Wireless Telegraphy Act, 1933, once the Central Government notifies the date on which the relevant provisions will come into force.
By way of brief background, the Department of Telecommunications (“DoT“) had earlier introduced a draft of the Indian Telecommunication Bill 2022 (“Telecom Bill”) for public consultation on 21st September 2022. The Telecom Bill received push-back for the legal and regulatory confusion that would have been caused by the clubbing of Over-theTop (“OTT”) communication services, internet-based communication services with the telecommunication services, introducing licensing requirements for providing, inter alia, OTT communication services and also encroaching upon the authority of the Telecom Regulatory Authority of India (“TRAI”). While some of these concerns seem to have been addressed, a closer examination of the Telecom Act shows that the definitions of key terms such as “telecommunication”, “telecommunication services”, and “messages” within the Telecom Act are wide and may potentially include regulation of OTT communication services. However, Shri Ashwini Vaishnaw, the Minister for Railways, Communications, Electronics & Information Technology, has reportedly clarified to various news outlets that OTT players or applications will not fall under the scope of the Telecom Act and will continue to be regulated by the Information Technology Act, 2000 (“IT Act“).
Telecommunication: Transmission, emission or reception of any messages, by wire, radio, optical or other electromagnetic 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;
Telecommunication equipment: Any equipment, appliance, radio equipment, etc. or user equipment, that may be or is being used for telecommunication, including software and intelligence integral to such telecommunication equipment; and excludes such equipment as may be notified by the Central Government;
Telecommunication network: A system or series of systems of telecommunication equipment or infrastructure, including terrestrial or satellite networks or submarine networks, or a combination of such networks, used for providing telecommunication services, but excludes such telecommunication equipment as notified by the Central Government;
Telecommunication service: Any service for telecommunication;
User: A natural or legal person, using or requesting a telecommunication service but does not include person providing such telecommunication service or telecommunication network.
Authorisation: The Telecom Act requires persons to obtain authorisation/ permissions to:
Further, authorised entities offering certain ‘notified’ telecommunication services will be required to identify persons who are availing telecommunication services using prescribed verifiable biometric-based identification.
Differential regulatory treatment and exemptions: The Central Government can prescribe different terms and conditions of authorisation for different types of telecommunication services, telecommunication networks, or radio equipment, or grant an exemption from authorisation altogether if such an exemption is necessary in ‘public interest’
Flexible use of Spectrum: The Telecom Act allows the Central Government to regulate the use of spectrum in the following manner:
Measures for national security, etc.: The Central Government can, in the interest of national security, friendly relations with foreign states, or in the event of war, issue directions for, inter alia, taking over the control and management of or suspending the operation of any telecommunication service/network.
Duties of users: The Telecom Act also imposes certain duties on users, such as the duty to not furnish false particulars, suppress material information, or impersonate another person, and to share information required under the Telecom Act.
Establishment of a Designated Appeals Committee: A person aggrieved by an order passed by the adjudicating officer can prefer an appeal before the designated appeals committee comprising of members who shall be officers of the Central Government not below the rank of Additional Secretary. Any order issued by the designated appeals committee has the enforceability equivalent to that of a civil court decree. Further, an appeal from the designated appeals committee’s decision will lie before:
Telecom Disputes Settlement and Appellate Tribunal (“TDSAT”): For matters regarding breach of terms or suspension/revocation of an authorisation/assignment; or
Voluntary undertaking for contraventions: The Telecom Act provides for voluntary undertaking for contraventions by the authorised entity or assignee. Any authorised entity or assignee who, inter alia, is in breach of the terms and conditions of authorisation/ assignment may, before any notice or initiation of the determination process, submit a voluntary undertaking to the adjudicating officer. This undertaking discloses the contraventions and outlines measures taken or to be taken to mitigate them. The acceptance of the undertaking shall lead to a bar on the proceedings under the Telecom Act.
India’s rapid economic growth creates fertile ground for telecom-powered innovation and progress. The widespread adoption of 5G networks and related technologies positions India to tap into fresh possibilities within the telecom and digital realms. The Telecom Act fuels this transformation by unleashing the full power of India’s telecom networks. The Telecom Act aligns with the government’s broader reforms like the Digital Personal Data Protection Act, the Digital India initiative, and the upcoming Digital India Bill, driving India’s ambitious march towards a digitally empowered future.
To this effect, the Telecom Act attempts to regulate activities related to telecommunications by introducing several changes to existing regulatory mechanisms governing the sector. The Telecom Act replaces the licensing regime for the establishment, maintenance, or operation of telegraphs with the introduction of an authorisation model for the provision of telecommunication services and for operating telecommunication equipment and networks. The Telecom Act has established a legal foundation for authorized entities to implement cybersecurity measures, aimed at safeguarding and ensuring the cybersecurity of both telecommunication networks and telecommunication equipment. Further, the Telecom Act amends the TRAI Act to allow for the appointment of members and the chairman from the private sector as well. This opens up the opportunity for cross-pollination of best practices as till date only individuals who have served in the State/Central Government were eligible for appointment as member or chairman in TRAI.
However, the Telecom Act does have some areas of concern. Given the broad definition of the term “telecommunication”, “telecommunication services”, and the inclusion of “data stream” within the term “messages”, the Telecom Act can potentially include OTT communication services as well. This would subject OTT communication service providers, who may also qualify as intermediaries, to dual regulation under the Telecom Act and the IT Act. This is because the IT Act already governs and provides a due diligence framework for intermediaries under the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021. By subjecting OTT communication services to the same regulatory treatment as the telecommunication services provided by authorised entities in the network layer, the Telecom Act clearly overlaps with the provisions of the IT Act. In light of this, the DoT should limit the definition of “message” under the Telecom Act to specifically exclude “data stream” from the ambit of “message” in order to exclude OTT communication services and thereby separate the treatment of services in the network layer and the application layer. While the Minister of Communications and Electronics & Information Technology, Shri Ashwini Vaishnaw, has reportedly clarified to various news outlets that OTT communication services remain regulated by the IT Act and are not covered in the Telecom Act, there has been no formal clarification that has been issued by the Ministry to this effect. Accordingly, whether OTT communication services will be completely excluded or not from the purview of the Telecom Act will be realised in the fullness of time. The major challenge that OTT communication platforms will face if they get covered within the purview of the Telecom Act is the implementation of the provisions pertaining to interception, as the same will affect the end-to-end encryption of OTT communication platforms, requiring them to completely reconfigure their operational architecture. This process would be extremely cost intensive and would impede the introduction of novel and innovative products and features by OTT communication service providers.
In conclusion, while the Telecom Act sets the stage for India’s digital transformation and telecom evolution, it is imperative that the government navigates its powers judiciously, addressing privacy and regulatory concerns and establishing clear safeguards for a resilient telecommunications landscape.
On 12th October 2023, the Ministry of Environment, Forest and Climate Change (“MoEFCC”) notified the Green Credit Rules, 2023, to promote market-based incentives for environmental actions. The Green Credit Programme aims to incentivize private sector entities, industries, and other stakeholders to undertake activities that have a positive impact on the environment, such as tree plantation, water management, sustainable development, waste management, air pollution reduction, mangrove conservation and restoration, eco-mark label development, and sustainable building and infrastructure. The MoEFCC had earlier issued the Draft of the Green Credit Programme Implementation Rules, 2023 in June 2023 for public consultation.
This Green Credit Programme (“Programme”) seeks to establish marketbased mechanism for providing Green Credits to incentivise inter alia, private sector, industries, etc. for environment positive actions.
‘Administrator’ means the Indian Council of Forestry Research and Education;
‘Designated Agency’ means an entity designated by the Administrator to conduct verification and submit reports to the Administrator as regard to the verification of the activities undertaken by an applicant for issuance of green credit;
‘Green Credit’ means a singular unit of an incentive provided for a specified activity, delivering a positive impact on the environment;
‘Registry’ means an electronic database system maintained by Green Credit Programme Administrator or its accredited agency to record issuance and exchange of Green Credits.
The measures that can be taken up for protection, preservation or conservation of the environment are:
The methodology for calculating the Green Credit shall be notified by the Central Government on the recommendation of the Administrator. The calculation of Green Credit in respect of any activity undertaken shall be based on equivalence of resource requirement, parity of scale, scope, size and other relevant parameters required to achieve the desired environmental outcome.
The Indian Council of Forestry Research and Education, shall be the administrator of the Programme which shall be responsible for the effective implementation of the Programme and shall discharge, inter alia, the following functions:
A Steering Committee, comprising of representatives from the concerned Ministries/Departments, experts from the field of environment, industry associations and other relevant stakeholders will be setup to monitor the implementation of the Programme.
The Central Government on the recommendation of the Administrator may constitute technical or sectoral committees, comprising of government officials and experts, for each activity for inter alia developing methodologies, standards and processes for registration of Green Credit activities and calculation as well as grant of Green Credits.
The Green Credit Registry will be in the form of an electronic database which contains inter-alia common data elements relevant to the issuance and registration of Green Credits. This registry will ensure accurate accounting of Green Credits, maintain a secure database, and provide information and support to participants in the Green Credit Programme.
The trading platform for the exchange of Green Credits shall be established by the Administrator. The guidelines for the establishment and operation of the trading platform shall be issued by the Administrator with the approval of Steering Committee.
A knowledge and data platform will be established as an online platform developed for providing transparency on the various types of activities being undertaken and for reporting sectoral progress under these rules.
The Programme shall be based on voluntary participation of all stakeholders. The Steering Committee is responsible for recommending measures to generate demand for Green Credit.
The Central Government will appoint independent auditors, on the recommendations of Steering Committee, to audit the activities of administrator, designated agency, Green Credit Registry, trading platform and knowledge and data platform within one year at the end of every third financial year.
The Green Credit Rules are a welcome step to promote market-based incentives for environmental actions. The Programme is based on voluntary participation and is open to all stakeholders, including the private sector, industries, and individuals.
A key highlight of the Programme is the establishment of a multi stakeholder Steering Committee to monitor its implementation and recommend measures to generate demand for Green Credits. This is a welcome initiative by the MoEFCC to work with stakeholders through a public-private partnership to address any challenges that may arise out of implementing the Programme. The Government should develop a clear roadmap for the Programme’s implementation, including timelines for developing methodologies for generating Green Credits, setting up the Green Credit Registry and trading platform, and launching the Programme. Additionally, the Government could consider providing financial incentives to early adopters to encourage participation and build momentum.
On 30th November 2023, the Department of Consumer Affairs (“DCA”), notified the Guidelines for Prevention and Regulation of Dark Patterns, 2023 (“Dark Pattern Guidelines”). Earlier, in September 2023, the DCA along with the Advertising Standards Council of India (“ASCI”) had published the Draft Guidelines for Prevention and Regulation of Dark Patterns (“Draft Guidelines”), for public consultation.
The Dark Pattern Guidelines prohibit persons and platforms from engaging in dark patterns and also provide a list of practices that would be considered dark patterns under these guidelines. In addition to the dark patterns listed in the Dark Pattern Guidelines, the Central Consumer Protection Authority (“CCPA”) can specify additional dark patterns from time to time.
Forced action – Forcing a user into taking an action that would require the user to buy additional good(s) or subscribe or sign up for an unrelated service or share personal information, in order to buy or subscribe to the product/service originally intended by the user.
Interface Interference – A design element that manipulates the user interface in ways that highlight certain specific information and obscure other relevant information relative to the other information, to misdirect a user from taking an action desired by her.
The introduction of the Dark Pattern Guidelines is a step in the right direction as an initiative vested in consumer interest that aims to ensure greater accountability from platforms offering goods and services, advertisers, and sellers.
However, given that the Dark Pattern Guidelines have come into force with immediate effect, they do not provide enough time to online platforms, advertisers, sellers, particularly startups and small entities, to adapt and ensure compliance with the Dark Pattern Guidelines. Further, the broad powers of the CCPA to declare any practice as dark pattern, without providing any guidance on the factors which would be considered by the CCPA while specifying additional dark patterns, would add to the compliance burden of the relevant stakeholders who will be required to adapt their platforms and processes in real time thereby affecting ease of doing business.
On 30th October 2023, the Ministry of Environment, Forest and Climate Change notified the Plastic Waste Management (Second Amendment) Rules, 2023 (“PWM Amendment Rules”) to further amend the Plastic Waste Management Rules, 2016 (“PWM Rules“) which eases several compliance obligations for relevant stakeholders. The PWM Amendment Rules amends inter alia the marking and labelling requirements, introduces the provision for submitting the application for registration through the centralised online portal developed by the Central Pollution Control Board and allows the purchase of EPR certificates for prescribed categories.
The definition of the term “carry bag” has been expanded to include bags made from “biodegradable plastic”, in addition to bags made from plastic material and compostable plastic material.
The earlier definition of “producer” in the PWM Rules included a ‘manufacturer’ as well as an ‘importer’ of ‘carry bags’ or ‘multilayered packaging’ or ‘plastic sheets’. This definition also previously included within its ambit industries/ individuals using plastic sheets/covers made of plastic sheets or multi-layered packaging for packaging or wrapping the commodity. However, the PWM Amendment Rules significantly limits the scope of the definition of a producer to “persons engaged in the manufacturing of plastic packaging”.
The PWM Amendment Rules exempt the following entities, from the application of provisions of extended producer responsibility [“EPR” under Rule 9(1) which requires PIBOs to create mechanisms for waste collection systems]–
However, this exemption will not apply to pre-consumer plastic packaging waste generated by the units.
The PWM Amendment Rules require only one-time registration of PIBOs through the centralized online portal of the CPCB and omits the requirement of renewal of such registration.
The various ‘conditions’ under Rule 4 (1) of the PWM Rules pertaining to thickness of various categories of plastic, recycling standards, etc. which was previously applicable to “multi-layered packaging” (amongst other types of plastic), has been substituted to “plastic packaging” generally. Accordingly, all the relevant and applicable conditions under Rule 4 (1) of the PWM Rules will also apply to PIBOs dealing with ‘plastic packaging’. The definition of plastic packaging under the PWM Rules is “packaging material made by using plastics for protecting, preserving, storing, and transporting of products in a variety of ways.”
The PWM Amendment Rules further have introduced a new sub-rule (1) amending the marking and labelling requirements under Rule 11 of the PWM Rules. As per this amendment, each plastic packaging should contain the following information, printed in English:
the name and registration certificate number for P/I/BO generated through centralized online portal for Plastic Packaging, in case of rigid plastic packaging, effective from 1st July 2024, multilayer flexible plastic packaging having more than one layer with different types of plastics, including plastic sachet or pouches, and multi-layered plastic packaging.
Rule 9(6) of the PWM Rules has substituted the term “multi-layered packaging” with “plastic packaging” thereby requiring every producer to maintain a record of details of the person engaged in supply of plastic packaging.
As per the PWM Amendment Rules, Additional Chief Secretary or Principal Secretary or the Secretary in charge of the Department of the State Government or a Union Territory Administration responsible for municipal administration will be responsible for enforcement of the rules in urban areas and Additional Chief Secretary or Principal Secretary or the Secretary in charge of the Department of the State Government or a Union territory Administration responsible for “Panchayati Raj Institutions” will be responsible for enforcement of the rules in rural areas, in respect of inter alia waste management by the waste generator, (restriction or prohibition on) use of plastic carry bags, plastic sheets etc.
The PWM Amendment Rules have also amended Schedule II and introduced a clause which allows purchase of EPR certificates for those categories where surplus exists over the EPR obligation of that category for fulfilment of extended producer responsibility obligation of such category where deficit exists. However, this provision will cease to apply at the end of the year 2025-2026.
The latest amendments to the PWM Rules foster ease of doing business by leveraging technology i.e. the centralized online portal of CPCB, requiring one-time registration of the PIBOs and omitting the need to renew the registration. Although, the PWM Amendment Rules have excluded importers from the definition of the term “producer” by limiting it to ‘manufacturers of plastic packaging’, the PWM Rules have not contributed to reducing the compliance burden of importers who were anyway required to inter alia fulfil the EPR obligations, register with the concerned State Pollution Control Board or Pollution Control Committee or the CPCB as the case may be. However, the relaxation does apply in certain compliances which are required to be made by a producer, such as maintaining a record of details of the person engaged in supply of plastic used as raw material to manufacture carry bags or plastic sheet or like or cover made of plastic sheet or plastic packaging. Moreover, the labelling requirements pertaining to thickness of plastic packaging which was a mandatory declaration under the PWM Rules has also been liberalised.
The exclusion of export-oriented units and special economic zones from the application of EPR requirements makes compliance easy thereby providing incentives in this area.
These amendments will play a significant role in plastic waste management and enable entities to comply with the rules. However, whether such amendments will incentivize environmental compliance vis-à-vis plastic waste management, or not, will become clear in the fullness of time.
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