India – Draft Telecommunications Bill addresses direct marketing and access requests by authorities

Direct marketing

The Bill provides for the Central Government to issue 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 contemplates requirements for the prior consent of users for receiving certain messages or class of messages; the establishment of a Do Not Disturb register, and a mechanism to enable users to report messages received in contravention of the rules.

Access by Authorities

• The Central Government, State Government or any officer specially authorised by either of them are expressly granted the power to intercept / order disclosure of messages where the following conditions are satisfied: (1) 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 interest of the sovereignty, integrity or security of India, friendly relations with foreign states, public order, or preventing incitement to an offence. The reasons for such a decision are to be recorded in writing;
• A wide power is also reserved for the Central Government to 'take such measures as are necessary' if it is satisfied that it is necessary or expedient to do so, in the interest of the sovereignty, integrity or security of India, friendly relations with foreign states, public order, or preventing incitement to an offence.
• The Bill also provides immunity from legal action for any act done in good faith under the Act. (s.39). However, it does not exclude judicial or other review of the decisions made or the availability of remedies otherwise than by suit, prosecution or legal proceeding.

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

The consultation is open until 20 October 2022.

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

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