Consumer protection or curb on right to speech and expression?

-writing from Harvard Law School


There have been recent news reports (though surprisingly few – here and here) on new government regulations that ostensibly seek to protect cell phone users from unwanted marketing calls, but may actually amount to restrictions on individual rights to free speech and expression. The telecom regulator TRAI introduced regulations which will come into effect on September 27, which limit the number of free SMSes a person can send to 100 a day.

The TELECOM COMMERCIAL COMMUNICATIONS CUSTOMER PREFERENCE (SIXTH AMENDMENT) REGULATIONS (read clause 8), 2011 state that call phone service providers cannot permit the sending of more than 100 SMSes a day. For post-paid subscribers, the limit is 3,000 SMSes per month. According to news reports, TRAI’s reason for this regulation is to check “Unsolicited Commercial Communications”. While this may reduce the number of marketing messages being received by irate cell-phone users, the larger ramifications of this regulation directly affects the freedom of individuals to send as many messages a person wants.

One direct effect of this regulation is on the competition between service providers and the benefit to cell-phone users: If Airtel can provide more free messages to its consumers than Vodafone or vice-versa, it means the two will compete to provide cheaper and cheaper services for free SMSes to consumers. In the end, consumers benefit.  Putting a blanket limit on free SMSes ensures that the cell phone companies now don’t have to compete to provide cheaper services. Net result: consumers lose.

More importantly, this affects how individuals communicate with others in society. In this respect, it is similar to saying, person A cannot speak more than 1,000 words a day, or person B cannot put up more than 3 blog posts or 5 Facebook updates a day. Granted these are extreme examples, but the effect of these regulations is similar. And why a 100 SMSes? How can anyone decide what is a reasonable limit on the number of free SMSes which can be sent? Why not 1,000? Why should someone set a limit on this at all? Suppose ardent supporters of Anna Hazare (I am not one!) wish to broadcast the latest demonstration he wants to conduct at Jantar Mantar, should they be restricted by a limit on the number of free SMSes they can send?

Lastly, is the convenience of not receiving marketing messages worth this restriction? Is this the only way TRAI can find to prevent marketing communications to consumers? Can marketing companies not give each of their agents 15 SIMs and allow them to send 1,500 SMSes a day? Do all marketing companies only use the facility of free SMSes, and can they not afford to pay for sending SMSes if the government sets a limit on free messaging? The truth is that only cell-phone users will be hurt by this regulation, and in a bad way.


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