Background
With the aim to shield consumers from unfair trade practices and violations of their rights by preventing unsolicited and unwarranted business communications, in the form of voice calls, SMS, and instant messaging applications including through social media platforms, the Central Consumer Protection Authority (CCPA), in exercise of its powers conferred under section 18(2)(l) of the Consumer Protection Act, 2019 (35 of 2019) (“Act”), has released the draft guidelines on ‘Prevention and Regulation of Unsolicited and Unwarranted Business Communication, 2024’ on June 20, 2024 (“Draft Guidelines”), for public comments, which are being invited till July 21, 2024.
Applicability
The Draft Guidelines, upon enforcement under the provisions of the Act shall apply to all ‘persons’ and ‘establishments’ that:
(i) make or cause to make Business Communication (as defined under the Draft Guidelines) (“Maker“);
(ii) that engage the Maker of any Business Communication;
(iii) that would be the intended beneficiary from the Business Communication; and
(iv) in whose name the Business Communication was made by the Maker.
“Business Communication” under the Draft Guidelines means and includes communication related to any goods or services including any transaction or service communication, but excluding personal communication, be carried out in the form of voice calls, SMS and instant messaging including through social media platforms.
Requirement and Prohibitions
All `persons’ and `establishments’ to whom the Draft Guidelines are applicable, as highlighted above, shall be prohibited from engaging in unsolicited and unwarranted Business Communication, and who shall be considered to be carrying out the same if they are undertaking Business Communications in the following manner:
(i) through a number series other than the one that has been prescribed by the authorities (i.e. Telecommunication Regulatory Authority of India (TRAI) or Department of Telecommunication (DOT)) or through a SMS header not registered with telecom service providers; or
(ii) despite a request or instruction from the consumer to opt out of any such communication by registering in the Do-Not-Disturb (DND) Registry being managed by the telecom service providers; or
(iii) without obtaining the explicit and specific consent in digital form from the consumer to receive such communication for the particular brand/beneficiary and their respective product; For voice calls and messages, such consents shall be treated as valid only if they are acquired through DCA (Digital Consent Acquisition) facility of telecom service providers; or
(iv) without clearly identifying the calling entity and the purpose of the call; or
(v) through an unauthorized employee or agent; or
(vi) without giving a clear, simple, free, and effective option to opt-out as well as a confirmation of opt-out if the consumer chooses to avail opting out; or
(vii) in contravention of TRAI’s regulation “Telecom Commercial Communications Customer Preference Regulations 2018” and directions issued thereunder, or any other directions issued under any other law/regulations/statute from time to time.
Conclusion
The Draft Guidelines introduced by CCPA represent a major advancement towards protecting consumer rights against unsolicited business communications in India, wherein upon enforcement of the same CCPA will commence scrutiny and penalization of offenders under the Act.
Author: Abhisshek Singlla
Co-Author: Prajjwal Sharma
