India’s ‘No’ to Free Internet Access Programs—Privacy, Data Security Perspectives

India has recently taken a courageous move which many countries have not taken. The Telecom Regulatory Authority of India recently passed the Prohibition of Discriminatory Tariffs for Data Services Regulations, 2016. The Regulations were primarily aimed at declaring the stated policy of India that no discriminatory tariffs in respect of content would be allowed. The said regulations further stipulated that, a service provider may, with the final approval of the Regulator, reduce tariff for accessing or providing emergency services, or at times of grave public emergency.

The effect of the said Regulations is that India has stated a categorical “no” to free Internet access programmes. The main purpose behind the regulations is to protect the interest of teaming millions of Indians, who have not yet come on to the Internet bandwagon. India is a sovereign, socialist, secular, democratic, republic and as per its statutory obligations under the Indian Constitution, it has passed the said regulations keeping mind the ultimate welfare of the Indian citizens. However, seen from another angle, the free Internet access programs like Facebook Inc.'s Free Basics amongst others have raised issues pertaining to privacy violations.

Fundamental Right to Privacy

A perusal of the Free Basics program show that it is subject to the Facebook terms and conditions. The Facebook terms and conditions states that depending on which services you use, Facebook collects different kinds of information from or about you. The said information is shared with apps, websites and third-party integrations on or using Facebook services, the family of companies that are part of Facebook, third-party partners and customers, advertising, measurement and analytics services, vendors, service providers and other partners.

India has taken the aforesaid move because India does not want the privacy of its citizens to be impacted in free Internet access programs. This becomes all the more relevant since the Supreme Court of India has broadly and widely interpreted Article 21 of the Indian Constitution embodying the fundamental right to life to include the right to privacy. The very fact that the said regulations have been passed, despite the fact that India does not have legislation on privacy, shows the futuristic mindset of Indian regulators.

Further, India is in an ascendency mode. As such, India is extremely concerned about protection and preservation of cybersecurity. No wonder, cybersecurity is the focal point for mutual collaboration in respect of bilateral agreements that India is having with many countries including U.K., Malaysia and others.

By saying no to a program like Free Basics, India has shown its steady resolve to deter such free Internet access programs as they could potentially and prejudicially impact the cybersecurity of Indian networks. India has fought for decades during British rule to get its independence. India does not want the establishment of digital colonies by such free Internet access programmes as such digital colonies could potentially hamper the cybersecurity of Indian networks as also the privacy and data security of its citizens, as also could prejudicially impact the security, integrity and sovereignty of India. Consequently, pursuant to the said regulations, Free Basics has announced that Free Basics is not available to India.

Conclusion

The learnings from such an episode are crystal clear. Corporations are offering free lunches of their so-called corporate social responsibility programs which are couched in indirect manner to prejudicially impact the enjoyment of privacy and data security of users. Countries across the world are increasingly getting sensitive to the protection and preservation of privacy and data security issues.

The aforesaid Indian regulations represent only a basic step forward in the direction of preservation and protection of privacy and data security in India. All eyes are now on the Indian legislature as to how they will come up with detailed legal mechanisms to protect and preserve the privacy and data security aspects governing the usage of electronic data. This is an interesting area to watch as far as growth of privacy and data security jurisprudence is concerned.