The Hindu : Opinion / Editorials : PUTTING COLD CALLS ON ICE

Online edition of India's National Newspaper
Wednesday, Feb 23, 2005

Opinion

Opinion - Editorials

PUTTING COLD CALLS ON ICE

ALMOST EVERYONE WHO has a cell phone — which means almost any one of 45 million-plus subscribers in India — has been annoyed at some time or another by telemarketers. The number of unsolicited calls from people retailing credit cards, offering loans, or peddling some scheme or the other seems to increase with every passing month. Now there is a sliver of hope that this nuisance may be put an end to. A writ petition recently admitted by the Supreme Court seeks judicial intervention to "check, regulate and stop the endemic invasion of privacy" of mobile phone subscribers by telemarketers. By ordering issue of notice to the Union Law Ministry, the Telecom Regulatory Authority of India, some cell phone operators, and a few banks, the apex court has indicated that it recognises that the problem is both vexatious and significant. By doing so, the court can also be said to have laid the ground for addressing a particular aspect of the privacy issue that has been neglected in the country.

The Constitution does not explicitly guarantee an individual's right to privacy, but the Supreme Court made it clear as early as 1964 (Kharak Singh vs. State of U.P.) that the right is implicit in Article 21, which safeguards life and personal liberty. Privacy rights of individuals are implicitly recognised also through statutes such as the Telegraph Act, 1885 and the Information Technology Act, 2000. While the existing legal climate protects individual privacy from the state, it does not shield people against invasion by non-governmental agencies such as telemarketers. Telemarketers sometimes have access to confidential information such as credit card payment details and bank account balances, which are presumably provided by those who hire them. They also have access to the list of the names of cell phone subscribers and their numbers. Mobile service providers, who cell phone users usually hold responsible for the cold call menace, are generally willing to admit that the leak of subscriber lists must have originated within their own companies. However, they claim that such leaks are unauthorised (being the handiwork of rogue employees or booking agents) and are extremely difficult to plug, given the nature of their business. In such an environment, it is pointless merely to play the blame game. What is required is the creation of a regulatory framework for telemarketing, one that prevents those involved in the business from causing harassment and invading privacy.

How can this be done? The United States has found an effective means of cutting down on junk calls through the creation of a National Do-Not-Call Registry, which is operated by the Federal Trade Commission. Telemarketers are prohibited from calling the mobile and land line telephone numbers figuring in this list and violators are liable to be sued under the federal Telephone Consumer Protection Act for making "illegal calls". Unsolicited calls from certain quarters such as charities, survey researchers, and political campaigns are permitted — thereby enabling the law to target those who make unwanted calls for commercial profit. While India does not have to follow the U.S. model in every detail, the telemarketing menace can be effectively checked only by a regulatory regime that imposes stiff penalties on violators. What will ultimately emerge from the writ petition is anybody's guess. But the fact remains that it has generated a lot of interest, not merely because of the benefit it may hold out for the cell phone users; it could well have implications for the broadening and strengthening of the legal definition of individual privacy in India.

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