TRAI issues guidelines to Access Service Providers to prevent misuse of messaging services

Introduction

On March 12, the Ministry of Corporate Affairs (MCA) proposed the Bill to curb anti-competitive practices of tech giants through ex-ante regulation. The Draft Digital Competition Bill is to apply to ‘Core Digital Services,’ with the Central Government having the authority to update the list periodically. The proposed list in the Bill encompasses online search engines, online social networking services, video-sharing platforms, interpersonal communications services, operating systems, web browsers, cloud services, advertising services, and online intermediation services. 

The primary highlight of the Digital Competition Law Report created by the Committee on Digital Competition Law presented to the Parliament in the 2nd week of March 2024 involves a recommendation to introduce new legislation called the ‘Digital Competition Act,’ intended to strike a balance between certainty and flexibility. The report identified ten anti-competitive practices relevant to digital enterprises in India. These are anti-steering, platform neutrality/self-preferencing, bundling and tying, data usage (use of non-public data), pricing/ deep discounting, exclusive tie-ups, search and ranking preferencing, restricting third-party applications and finally advertising Policies.

Key Take-Aways: Digital Competition Bill, 2024

1. Qualitative and quantitative criteria for identifying Systematically Significant Digital Enterprises, if it meets any of the specified thresholds. 

• Financial thresholds in each of the immediately preceding three financial years like turnover in India, global turnover, gross merchandise value in India, or global market capitalization.
• User thresholds in each of the immediately preceding 3 financial years in India like the core digital service provided by the enterprise has at least 1 crore end users, or it has at least 10,000 business users.
• The Commission may make the designation based on other factors such as the size and resources of an enterprise, number of business or end users, market structure and size, scale and scope of activities of an enterprise and any other relevant factor.

2. A period of 90 days is provided to notify the CCI of qualification as an SSDE. Additionally, the enterprise must also notify the Commission of other enterprises within the group that are directly or indirectly involved in the provision of Core Digital Services, as Associate Digital Enterprises (ADE) and the qualification shall be for 3 years.
3. It prescribes obligations for SSDEs and their ADEs upon designation. The enterprise must comply with certain obligations regarding Core Digital Services, and non-compliance with the same shall result in penalties. Enterprises must not directly or indirectly prevent or restrict business users or end users from raising any issue of non-compliance with the enterprise’s obligations under the Act. 
4. Avoidance of favouritism in product offerings by SSDE,  its related parties, or third parties for the manufacture and sale of products or provision of services over those offered by third-party business users on the Core Digital Service in any manner.
5. The Commission will be having the same powers as vested to a civil court under the Code of Civil Procedure, 1908 when trying a suit.
6. Penalty for non-compliance without reasonable cause may extend to Rs 1 lakh for each day during which such non-compliance occurs (max. of Rs 10 crore). It may extend to 3 years or with a fine, which may extend to Rs 25 crore or with both. The Commission may also pass an order imposing a penalty on an enterprise (not exceeding 1% of the global turnover) in case it provides incorrect, incomplete, misleading information or fails to provide information. 

Suggestions and Recommendations

• The ex-ante model of regulation needs to be examined for the Indian scenario and studies need to be conducted on it has worked previously in different jurisdictions like the EU. 
• The Bill should be aimed at prioritising the fostering of fair competition by preventing monopolistic practices in digital markets exclusively. A clear distinction from the already existing Competition Act, 2002 in its functioning needs to be created so that there is no overlap in the regulations and double jeopardy is not created for enterprises.
• Restrictions on tying and bundling and data usage have been shown to negatively impact MSMEs that rely significantly on big tech to reduce operational costs and enhance customer outreach.
• Clear definitions of "dominant position" and "anti-competitive behaviour" are essential for effective enforcement in terms of digital competition need to be defined. 
• Encouraging innovation while safeguarding consumer data privacy in consonance with the DPDP Act should be the aim. Promoting interoperability and transparency in algorithms can prevent discriminatory practices. 
• Regular reviews and stakeholder consultations will ensure the law adapts to rapidly evolving technologies. 
• Collaboration with global antitrust bodies which is aimed at enhancing cross-border regulatory coherence and effectiveness.

Conclusion

The need for a competition law that is focused exclusively on Digital Enterprises is the need of the hour and hence the Committee recommended enacting the Digital Competition Act to enable CCI to selectively regulate large digital enterprises. The proposed legislation should be restricted to regulate only those enterprises that have a significant presence and ability to influence the Indian digital market. The impact of the law needs to be restrictive to digital enterprises and it should not encroach upon matters not influenced by the digital arena. India's proposed Digital Competition Bill aims to promote competition and fairness in the digital market by addressing anti-competitive practices and dominant position abuses prevalent in the digital business space. The Ministry of Corporate Affairs has received 41-page public feedback on the draft which is expected to be tabled next year in front of the Parliament. 

References

1. https://www.medianama.com/wp-content/uploads/2024/03/DRAFT-DIGITAL-COMPETITION-BILL-2024.pdf
2. https://prsindia.org/files/policy/policy_committee_reports/Report_Summary-Digital_Competition_Law.pdf
3. https://economictimes.indiatimes.com/tech/startups/meity-meets-india-inc-to-hear-out-digital-competition-law-concerns/articleshow/111091837.cms?from=mdr
4. https://www.mca.gov.in/bin/dms/getdocument?mds=gzGtvSkE3zIVhAuBe2pbow%253D%253D&type=open
5. https://www.barandbench.com/law-firms/view-point/digital-competition-laws-beginning-of-a-new-era
6. https://www.linkedin.com/pulse/policy-explainer-digital-competition-bill-nimisha-srivastava-lhltc/
7. https://www.lexology.com/library/detail.aspx?g=5722a078-1839-4ece-aec9-49336ff53b6c

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In the vast, interconnected cosmos of the internet, where knowledge and connectivity are celebrated as the twin suns of enlightenment, there lurk shadows of a more sinister nature. Here, in these darker corners, the innocence of childhood is not only exploited but also scarred, indelibly and forever. The production, distribution, and consumption of Child Sexual Abuse Material (CSAM) have surged to alarming levels globally, casting a long, ominous shadow over the digital landscape. 

In response to this pressing issue, the National Human Rights Commission (NHRC) has unfurled a comprehensive four-part advisory, a beacon of hope aimed at combating CSAM and safeguarding the rights of children in this digital age. This advisory dated 27/10/23 is not merely a reaction to the rising tide of CSAM, but a testament to the imperative need for constant vigilance in the realm of cyber peace.

The statistics paint a sobering picture. In 2021, more than 1,500 instances of publishing, storing, and transmitting CSAM were reported, shedding a harsh light on the scale of the problem. Even more alarming is the upward trend in cases reported in subsequent years. By 2023, a staggering 450,207 cases of CSAM had already been reported, marking a significant increase from the 204,056 and 163,633 cases reported in 2022 and 2021, respectively.

The Key Aspects of Advisory

The NHRC's advisory commences with a fundamental recommendation - a redefinition of terminology. It suggests replacing the term 'Child Pornography' with 'Child Sexual Abuse Material' (CSAM). This shift in language is not merely semantic; it underscores the gravity of the issue, emphasizing that this is not about pornography but child abuse. 

Moreover, the advisory calls for the definition of 'sexually explicit' under Section 67B of the IT Act, 2000. This step is crucial for ensuring the prompt identification and removal of online CSAM. By giving a clear definition, law enforcement can act swiftly in removing such content from the internet.

The digital world knows no borders, and CSAM can easily cross jurisdictional lines. NHRC recognizes this challenge and proposes that laws be harmonized across jurisdictions through bilateral agreements. Moreover, it recommends pushing for the adoption of a UN draft Convention on 'Countering the Use of Information and Communications Technologies for Criminal Purposes' at the General Assembly.

One of the critical aspects of the advisory is the strengthening of law enforcement. NHRC advocates for the creation of Specialized State Police Units in every state and union territory to handle CSAM-related cases. The central government is expected to provide support, including grants, to set up and equip these units. 

The NHRC further recommends establishing a Specialized Central Police Unit under the government of India's jurisdiction. This unit will focus on identifying and apprehending CSAM offenders and maintaining a repository of such content. Its role is not limited to law enforcement; it is expected to cooperate with investigative agencies, analyze patterns, and initiate the process for content takedown. This coordinated approach is designed to combat the problem effectively, both on the dark web and open web.

The role of internet intermediaries and social media platforms in controlling CSAM is undeniable. The NHRC advisory emphasizes that intermediaries must deploy technology, such as content moderation algorithms, to proactively detect and remove CSAM from their platforms. This places the onus on the platforms to be proactive in policing their content and ensuring the safety of their users. 

New Developments 

Platforms using end-to-end encryption services may be required to create additional protocols for monitoring the circulation of CSAM. Failure to do so may invite the withdrawal of the 'safe harbor' clause under Section 79 of the IT Act, 2000. This measure ensures that platforms using encryption technology are not inadvertently providing safe havens for those engaged in illegal activities. 

NHRC's advisory extends beyond legal and law enforcement measures; it emphasizes the importance of awareness and sensitization at various levels. Schools, colleges, and institutions are called upon to educate students, parents, and teachers about the modus operandi of online child sexual abusers, the vulnerabilities of children on the internet, and the early signs of online child abuse. 

To further enhance awareness, a cyber curriculum is proposed to be integrated into the education system. This curriculum will not only boost digital literacy but also educate students about relevant child care legislation, policies, and the legal consequences of violating them. 

NHRC recognizes that survivors of CSAM need more than legal measures and prevention strategies. Survivors are recommended to receive support services and opportunities for rehabilitation through various means. Partnerships with civil society and other stakeholders play a vital role in this aspect. Moreover, psycho-social care centers are proposed to be established in every district to facilitate need-based support services and organization of stigma eradication programs. 

NHRC's advisory is a resounding call to action, acknowledging the critical importance of protecting children from the perils of CSAM. By addressing legal gaps, strengthening law enforcement, regulating online platforms, and promoting awareness and support, the NHRC aims to create a safer digital environment for children. 

Conclusion 

In a world where the internet plays an increasingly central role in our lives, these recommendations are not just proactive but imperative. They underscore the collective responsibility of governments, law enforcement agencies, intermediaries, and society as a whole in safeguarding the rights and well-being of children in the digital age. 

NHRC's advisory is a pivotal guide to a more secure and child-friendly digital world. By addressing the rising tide of CSAM and emphasizing the need for constant vigilance, NHRC reaffirms the critical role of organizations, governments, and individuals in ensuring cyber peace and child protection in the digital age. The active contribution from premier cyber resilience firms like Cyber Peace Foundation, amplifies the collective action forging a secure digital space, highlighting the pivotal role played by think tanks in ensuring cyber peace and resilience. 

References:

• https://www.hindustantimes.com/india-news/nhrc-issues-advisory-regarding-child-sexual-abuse-material-on-internet-101698473197792.html
• https://ssrana.in/articles/nhrcs-advisory-proliferation-of-child-sexual-abuse-material-csam/
• https://theprint.in/india/specialised-central-police-unit-use-of-technology-to-proactively-detect-csam-nhrc-advisory/1822223/

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Introduction

With the ever-growing technology where cyber-crimes are increasing, a new cyber-attack is on the rise, but it’s not in your inbox or your computer- it's targeting your phone, especially your smartphone. Cybercriminals are expanding their reach in India, with a new text-messaging fraud targeting individuals. The Indian Computer Emergency Response Team (CERT-In) has warned against "smishing," or SMS phishing. 

Understanding Smishing

Smishing is a combination of the terms "SMS" and "phishing." It entails sending false text messages that appear to be from reputable sources such as banks, government organizations, or well-known companies. These communications frequently generate a feeling of urgency in their readers, prompting them to click on harmful links, expose personal information, or conduct financial transactions.

When hackers "phish," they send out phony emails in the hopes of tricking the receiver into clicking on a dangerous link. Smishing is just the use of text messaging rather than email. In essence, these hackers are out to steal your personal information to commit fraud or other cybercrimes. This generally entails stealing money – usually your own, but occasionally also the money of your firm.

The cybercriminals typically use these tactics to lure victims and steal the information.

Malware- The cyber crooks send the smishing URL link that might tick you into downloading malicious software on your phone itself. This SMS malware may appear as legitimate software, deceiving you into putting in sensitive information and transmitting it to crooks.

Malicious website- The URL in the smishing message may direct you to a bogus website that seeks sensitive personal information. Cybercriminals employ custom-made rogue sites meant to seem like legitimate ones, making it simpler to steal your information.

Smishing text messages often appear to be from your bank, asking you to share personal sensitive information, ATM numbers, or account details. Mobile device cybercrime is increasing, as is mobile device usage. Aside from the fact that texting is the most prevalent usage of cell phones, a few additional aspects make this an especially pernicious security issue. Let's go over how smishing attacks operate.

Modus Operandi

The cyber crooks commit the fraud via SMS. As attackers assume an identity that might be of someone trusted, Smishing attackers can use social engineering techniques to sway a victim's decision-making. Three things are causing this deception:

• Trust- Cyber crooks target individuals, by posing to someone from a legitimate individual and organization, this naturally lowers a person’s defense against threats. 

• Context- Using a circumstance that might be relevant to targets helps an attacker to create an effective disguise. The message feels personalized, which helps it overcome any assumption that it is spam.
• Emotion- The nature of the SMS is critical; it makes the victim think that is urgent and requires rapid action. Using these tactics, attackers craft communications that compel the receiver to act.
• Typically, attackers want the victim to click on a URL link within the text message, which takes them to a phishing tool that asks them for sensitive information. This phishing tool is frequently in the form of a website or app that also assumes a phony identity.

How does Smishing Spread?

As we have revealed earlier smishing attacks are delivered through both traditional texts. However, SMS phishing attacks primarily appear to be from known sources People are less careful while they are on their phones. Many people believe that their cell phones are more secure than their desktops. However, smartphone security has limits and cannot always guard against smishing directly.

Considering the fact phones are the target While Android smartphones dominate the market and are a perfect target for malware text messages, iOS devices are as vulnerable. Although Apple's iOS mobile technology has a high reputation for security, no mobile operating system can protect you from phishing-style assaults on its own. A false feeling of security, regardless of platform, might leave users especially exposed.

Kinds of smishing attacks

Some common types of smishing attacks that occurred are;

•  COVID-19 Smishing: The Better Business Bureau observed an increase in reports of US government impersonators sending text messages requesting consumers to take an obligatory COVID-19 test via a connected website in April 2020. The concept of these smishing assaults may readily develop, as feeding on pandemic concerns is a successful technique of victimizing the public.

• Gift Smishing: Give away, shopping rewards, or any number of other free offers, this kind of smishing includes free services or products, from a reputable or other company. attackers plan in such a way that the offer is for a limited time or is an exclusive offer and the offers are so lucrative that one gets excited and falls into the trap. 

CERT Guidelines

 CERT-In shared some steps to avoid falling victim to smishing. 

• Never click on any suspicious link in SMS/social media charts or posts.
• Use online resources to validate shortened URLs.
• Always check the link before clicking.
• Use updated antivirus and antimalware tools.
• If you receive any suspicious message pretending to be from a bank or institution, immediately contact the bank or institution.
• Use a separate email account for personal online transactions.
• Enforce multi-factor authentication (MFA) for emails and bank accounts.
• Keep your operating system and software updated with the latest patches.

Conclusion

Smishing uses fraudulent mobile text messages to trick people into downloading malware, sharing sensitive data, or paying cybercriminals money. With the latest technological developments, it has become really important to stay vigilant in the digital era not only protecting your computers but safeguarding the devices that fit in the palm of your hand, CERT warning plays a vital role in this. Awareness and best practices play a pivotal role in safeguarding yourself from evolving threats.

Reference

• https://www.ndtv.com/india-news/government-warns-of-smishing-attacks-heres-how-to-stay-safe-4709458
• https://zeenews.india.com/technology/govt-warns-citizens-about-smishing-scam-how-to-protect-against-this-online-threat-2654285.html
• https://www.the420.in/protect-against-smishing-scams-cert-in-advice-online-safety/