Why TRAI’s Recommendation on OTT Regulation is an Important Development to Uphold Privacy in India

Essentially, this amounts to a rejection of complaints raised by telecom operators who demanded that OTT apps provided a substitutable service and must be regulated in a similar way to telecom companies themselves. Clearly, TRAI was not convinced and its forbearance is a step forward to protect the interest of the users. While the call for regulation emanated from an economic standpoint, TRAI in its 2015 consultation also took into account how OTT platforms have regulated themselves as users demand for greater privacy and encryption. This was followed by another consultation in 2018 where TRAI released a paper on exploring regulatory frameworks for OTTs in India. This is especially relevant post the Cambridge Analytica scandal that revealed to the world that a greater sense of accountability needed to be imposed on companies that now facilitate conversations and data online.

To gain a better understanding of these recommendations, it is important to understand some of the progressive moves being put in place.

Firstly, it allows for market forces to self-regulate without government interference and oversight. This is in line with the argument put forth by civil society organisations that the IT Act already regulates OTT platform interaction and any additional regulatory framework to come will act as a form of over-regulation. Secondly, by refraining from regulating OTT platforms at this point, the TRAI has quelled concerns regarding freedom of speech and potential over-surveillance of citizens by the government.

Another closely-related decision is the move to uphold encryption standards and not mandate back-door access to OTT data. Encryption is an integral aspect of maintaining user privacy and security and maintaining high standards of the same is a positive move. While American and Brazilian laws seeking to break strong encryption have been emphatically criticised by experts, the Indian regulator’s forward looking approach that seeks to preserve privacy and freedom of speech on the internet must be welcomed by the international audience, and should be an example to follow globally.