In July, 2018 the Telecom Regulatory Authority of India (“TRAI”) recommended rules that restrict telecom and internet service providers from using personal information and data of its users. This effectively meant that users can have control on their data and personal information. These recommended rules were to be applicable for apps, browsers, mobile instrument makers and operating systems. This surprise announcement by the regulatory authority has put in sharp focus the need for regulation of data privacy.
Justice Srikrishna Commission
Ahead of the TRAI recommendations, the Justice BN Srikrishna commission was instituted about the same time last year to put in place a regulatory framework for data privacy. The commission headed by former Judge of the Supreme Court Mr. B N Srikrishna consists of eminent jurists, academicians and regulators from the Ministry of Electronics and IT to draft a data protection bill in India. The objective of the committee - “ensure growth of the digital economy while keeping personal data of citizens secure and protected.”
This is a first in the country – to draft a bill / law that governs usage, data retention and responsibilities, obligations and liabilities of individuals, corporates and government in handling third party data.
Why do we need a law?
The Facebook – Cambridge Analytica data mining scandal that hit the world in 2018 turned the issue of data protection / privacy on its head. The London based election consultancy firm along with the social media giant is at the centre of an ongoing dispute over alleged harvesting and use of personal data of almost 50 million Facebook users, believed to be without their consent.
This was alleged to have been done by way of a random personality quiz on Facebook where information of people was harvested and collected from users and their friends who never gave their permission for their details to be used. Facebook is being hauled by the Congressional committee in US and Europe. European Union’s Antitrust Regulators had imposed upon Facebook a hefty fine of $122 million on the ground that the Social Media Giant provided misleading information during its 2004 acquisition of WhatsApp. Dutch and French Regulators ruled that Facebook had broken strict data protection rules. Other European Countries including Germany, are heavily coming down on Facebook by imposing huge penalties for, inter alia, misinformation.
The scandal seems to have had its impact on India as well - it is estimated that data of approximately 5 lakhs accounts of Indian Facebook users has been used without their knowledge or consent. The Indian government has written to the social media giant seeking explanation, while it is planning to initiate legal action.
Back home, India has had to dealing with a similar issue. The raging debate on right to privacy was finally put to rest when in August, 2017 a nine Judge Constitution bench of the Supreme Court unanimously ruled that the right to privacy is a fundamental rule under the Constitution of India. It is an intrinsic part of the right to life and personal liberty under Article 21 of the Constitution. This only fuels the need to protect data of individuals / citizens.
On the same lines, the “Aadhar card – privacy violation” debate continues on whether the world’s biggest biometric unique identity database and its information extracting requirements violate the fundamental right to privacy of individuals. For now, the Supreme Court has ruled that the Aadhar is not mandatory for a range of services like registration of mobile phone numbers, booking gas cylinders, railway tickets and the like while it is mandatory to avail social benefit schemes.
In its recommendations made public ahead of the release of the white paper on data protection by the Srikrishna committee, TRAI has broadly made the following recommendations1:
The above recommendations seem relevant to all entities of the digital ecosystem that use personal data of users.
Data protection laws around the world
Sweden was the first country to enact data protection laws (The Data Act) way back in 1973. As of 2018, nearly 100 countries including Europe, Latin America, the Caribbean, Asia, and Africa have adopted comprehensive data protection laws.
In the U.S there is no single comprehensive law governing the entire the nation. Instead there are individual states / federal laws. There are host of other regulations / guidelines developed by specific categories such as financial sector, health sector etc. These are considered as “best practices” which are increasingly being adhered to by the relevant industries.
The European Union’s (EU) General Data Protection Regulation (GDPR) came into force on 25th May 2018, replacing the existing Data Protection Directive that was in existence since 1995. The main objective of enacting the GDPR – address issues relating to the way in which data is collected, analysed and transmitted by different types of business such as social networks, mobile applications and e-commerce.
Data protection law – a new age legislation
The government instituted the BN Srikrishna Commission to make specific suggestions to be considered for data protection in India and suggest a draft data protection bill. The suggestions are aimed at ensuring a correct balance between economic developments alongside ensuring privacy of data of citizens,"
The high level committee is scheduled to meet in the last week of July, 2018 to finalize its recommendations after taking into account the TRAI recommendations. The TRAI recommendations are two fold – one which is (telecom) sector specific while the other being generally applicable to a digital economy.
It is widely believed that the Srikrishna committee may bring out recommendations which will take a middle path between the more liberal US laws and the very stringent Europe laws. The ball is set to roll for India to get is most comprehensive and much needed data protection laws.
DATA PRIVACY: “TRAI” IT!
In July, 2018 the Law commission of India in its Report, presented its recommendations examining the issue of legalising betting and gambling in India, after taking inputs from various stakeholders. The Report categorically recommended that legalising betting and gambling in India in the present scenario is not desirable and that a complete ban on unlawful betting and gambling must be ensured to prevent the fraudulent activities and the boom in black-money generation and circulation. The Report adds that effective regulation remains the only viable option to control gambling if it is not possible to enforce a complete ban in order to prevent unlawful activities. The Commission has recommended a three pronged strategy to overcome the existing hurdles, namely, reforming the existing gambling market, regulating illegal gambling and introducing stringent and overarching regulations.
What is Gambling?
Black’s Law dictionary defines gambling as betting or wagering that results in either a gain or loss for the person betting or the wager. It is a substantial short term risk to get a potentially high gain.
It is believed that gambling dates back to as early as the Palaeolithic period. Countries like China had gambling houses which played cards and betting on animals as early as the 10th century. It was in Persia that the Poker game originated in the 17th century and the first known casino started operating in Venice in the 16th century. Back home in India, legend and mythology have numerous stories. It is well known that in the Mahabharata, the Pandavas lost their kingdom and wife in a game of dice to their cousins, the Kauravas.
Gambling has different types to it – Casino games, tables games, roulette, electronic games such a poker, slot machines, bingo non casino games like playing cards, game of dice etc. Lately they are also being classified as online and offline gambling.
There are many countries that have legalised gambling. Majority of Europe has legalized all forms of gambling. In Countries such as UK, Spain, Germany, Belgium, Austria, Croatia, Finland, Greece gambling is legal and regulated. Canada and Mexico have made it fully legal to gamble. However, in most of the Middle Eastern countries such as UAE, Qatar, Cyprus, Lebanon and other countries like Singapore and Poland gambling has been made completely illegal and gamblers are liable to strict laws of arrest and prosecution. In Asian countries, the laws vary from country to country. There are some countries in which some forms of gambling are illegal while other are legal. Taiwan for example allows sports betting and bans all other forms of betting. Thailand has banned gambling but there seems to be no restriction on indulging in online gambling on foreign gambling sites. In Vietnam land based casinos are available only for foreign visitors and not local residents.
India and Gambling
In India, gambling is legally restricted except in lotteries and horse riding is common practice to indulge in gambling during festival times such as Diwali and Holi. “Lottery”, being enumerated under Entry 40 of List I of the Seventh Schedule of the Constitution of India, has been generally excluded from the ambit of “gambling”, which is a State subject under Entry 34 of List II of the Seventh Schedule. The Public Gambling Act, 1867 (as applicable to States such as Himachal Pradesh and Madhya Pradesh) as well as section 2(i) of the Delhi Public Gambling Act, 1955, suggest the same. The Information Technology Act, 2000 regulates cyber or online gambling with heavy fines and imprisonments.
The Central Act has been severely criticised for its minimal fines and punishments which seem to hardly deter the people from illegal betting. India is estimated to have approximately Rs. 200 crores of illegal betting money.
State-wise position of law
Gambling has two sides to it. Considered to be part of our culture, it is essentially a game of skill and or chance interchangeably. It is believed to contribute to a person’s income. It is also considered a source of entertainment. However, there is overwhelming negative side to it – it tends to become a behavioural addiction. Illegal gambling by individuals and gambling houses is a discreet way of funding money for anti-social activities – drugs, terrorism and the like, not to mention the loss of income / property when the game of chance does not support the person indulging in it.
The debate on making gambling a legal sport has been going on for a while now. The Law commission’s recent recommendations have only put it back in the spot light. The recommendations have taken into account interests of various stakeholders who favour regulation of such activities through stringent laws. Stake holders have suggested pointers like having a minimum age limit of 18 years to indulge in gambling and also linking such transactions to the PAN / Aadhar of the player. There must also be a maximum limit on such transactions to be transacted. There is also a suggestion to amend the FDI policy to allow legal inflow of such investments. It seems that it is the right time now to accept gambling as a social reality provided the same is regulated in an effective manner and ensure legitimate revenue for the economy.
The Law Commission has recommended regulated gambling and betting in sports. In a detailed report submitted to the government on in July, 2018, the Commission has opined that since such activities cannot be prevented, it is best to regulate them through a law.
A sum of money paid by a buyer at the time of entering a contract to indicate the intention and ability of the buyer to carry out the contract.
A fraudulent, false or collusive manner of pleading to the deception of a third person.
In english law, the payment of rent, tax, duty or annuity. The right is a license or interest in the nature of real estate, conditional on the due payment of rent and observance of the obligations imposed on the galee.
A jury half of one tongue or nationality and half of another.
Consumers Beaware !
THE VERDICT (1982) (Movie)
Nominated for 5 Academy awards, the movie released in 1982 was commercially successful as well as critically acclaimed. Based on Barry Reed’s famous novel, the movie had a stellar cast – Paul Newman, Charlotte Rampling, Jack Warden, James Mason, Milo O'Shea, and Lindsay Crouse.
Newman plays the lead role of Frank Galvin, an upcoming lawyer who gets fired from his elite law firm for alleged jury tampering. He takes to the bottle on the rebound and ends up as an alcoholic with no work. As a favour his lawyer friend sends him a case of medical malpractice / negligence involving a young woman who goes into coma after being administered anaesthesia during child birth. Her family is hoping for a settlement of large sum of money to be able to give her proper care. The case seems to be open and shut until Frank goes to hospital to visit the young woman. Deeply disturbed after meeting her, Frank turns down the settlement offered and surprises everyone by choosing to go to trial. Watch the movie to know the verdict.
JUDD FOR THE DEFENSE (1967-1969) (Novel)
Published in October, 2017 the book is an intriguing story penned by Michael Connelly, one of the best crime story author in our times. Of the 30 novels written and published by him, “Two kinds of truth” is the 20th novel in which he has brought back the fictional character of Hieronymus “Harry” Bosch – the veteran the LAPD homicide detective.
“Two kinds of truth” inter twines two unconnected stories involving Harry Bosch. In one, Bosch is working with the police department helping when he is asked to investigate the murder of two pharmacists. In the course of his investigation, he realises that this is just the tip of the ice berg into organised crime of prescription abuse and the dirty underbelly of “pill mills”. Alongside this, one convict whom Bosch gets imprisoned accuses Bosch of framing him in a crime he did not commit. How the past comes haunting back to Bosch even as he almost loses his life investigating the present case makes up for the remaining story. Two kids of truth emerge. A compelling read.
ELI STONE (2008-2009) (TV Series)
An American legal comedy / drama series, Eli Stone ran for two seasons (26 episodes) in the United States. Titled after the central character, the show is based on a San Francisco Lawyer who has hallucinations. Such hallucinations lead him to predict events in future and take up cases with moral high ground in it.
Without law men are beasts
- Maxwell Anderson
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