Telecom Commercial Communication Customer Preference Regulation, 2018 notified: TRAI

Telecom Regulatory Authority of India (TRAI) has notified Telecom Commercial Communication Customer Preference Regulation, 2018 that is proposed to curb the problem of Unsolicited Commercial Communication (UCC).

The regulations provide for:

  1. Registration of senders (businesses and telemarketers)

Through an easy registration processes, the business will be able assert their identity and build trust of the clients. This diminishes the ability of unknown entities reaching their customers with calls and messages that are fraudulent or otherwise of dubious nature.

2. Registration of Headers

Using headers intelligently to segregate different types of messages, businesses shall be able to help their clients manage, delete or store communications related to OTP’s, balance enquires, flight alerts, special offers, etc.

3. Registration of subscribers’ consent

Unscrupulous telemarketers today override the stated preference of the subscriber by claiming consent that may have been surreptitiously obtained. New regulations provide the subscriber with complete control over their consent and the ability to revoke the consent already granted, at their option. A major abuse of the current regulations would thus be stopped.

4. Message template

The concept of registered templates for both SMS and voice communication has been introduced to prevent deliberate mixing of promotional messages into the transactional stream. This will give relief to subscribers who feel targeted by unwanted communication today.

5. Fine-grained control over preferences

New regulations provide for fine grained control over preferences, including such options as the time window in which to allow specific types of unsolicited communication.

The salient features of the regulation are:

a) Adoption of Distributed Ledger Technology (or blockchain) as the RegTech to ensure regulatory compliance while allowing innovation in the market.

b) Co-regulation where Telecom Service Providers/ Access Providers establish and arrange the framework, which is legally backed by regulation.

c) Enabling compliance through innovation in technology solutions that are demonstrated in a regulatory sandbox.

d) Enhanced controls and new options for all entities to perform their functions and to carry on their businesses efficiently.

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NHAI ordered to pay damages of INR 26.35 cr: AT

In a complex claim against National Highways Authority of India (“NHAI”) related to construction, operation and maintenance of a section of National Highway 9, DSL attorneys got a favorable arbitral award for its client wherein the majority panel granted a final award of INR 26.35 crore (~USD 4 million) to be paid within ninety (90) days from the date of receipt of the award.

The Arbitral Tribunal agreed with the arguments of DSL partner Sameep Vijayvergiya that NHAI did not fulfil the conditions precedent required to be fulfilled by them and the obligations of the Claimant being reciprocal in nature could not be performed due to such failure.

The Arbitral Tribunal, based on DSL’s arguments, rejected the counterclaims of NHAI amounting to INR 1,600 crore (~USD230 million).

This award in favor of Claimant is one of the biggest monetary damages awarded against NHAI.

On a side note, the minority awarded a sum of INR 154 crore (~USD22 million) as damages against NHAI.

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USCIS issues guidance to adjudicators on certain RFEs & NOIDs

U.S. Citizenship and Immigration Services (USCIS) has issued policy memorandum that provide guidance to its adjudicators regarding the discretion to deny an application, petition, or request without first issuing a Request for Evidence (RFE) or Notice of Intent to Deny (NOID) if initial evidence is not submitted or if the evidence in the record does not establish eligibility.

This updated guidance is effective September 11, 2018 and applies to all applications, petitions, and requests received after the effective date.

Posted in Administrative Law, FDI, General Law, Immigration, india immigration law, International Law, Notifications/Publications/Circulars, US Immigration Law | Tagged , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , | Leave a comment

Automobile exception doesn’t apply to houses: USSC

The Supreme Court of the United States of America recently held that the automobile exception to the Fourth Amendment does not permit a police officer, uninvited and without a warrant, to enter the curtilage of a home in order to search a vehicle parked therein.

“the automobile exception does not permit the warrantless entry of a home or its curtilage in order to search a vehicle therein”, the Court said.

The Court emphasized that the automobile exception rationales applied only to automobiles and not to houses. Curtilage (the area immediately surrounding and associated with the home) is considered ‘part of the home’ itself for Fourth Amendment purposes, and thus, when an officer physically intrudes on the curtilage to gather evidence, a Fourth Amendment search has occurred and is presump­tively unreasonable absent a warrant.

“Because the scope of the automobile exception extends no further than the automobile itself, it did not justify Officer Rhodes’ invasion of the curtilage. Nothing in this Court’s case law suggests that the automobile exception gives an officer the right to enter a home or its curtilage to access a vehicle without a warrant. Such an expansion would both undervalue the core Fourth Amendment protection af­forded to the home and its curtilage and ‘untether’ the exception from the justifications underlying it”, the Court reasoned.

The case arose during the investigation of two traffic incidents involving an orange and black motorcycle with an extended frame. Police learned that the motorcycle likely was stolen and in the possession of the accused. Relying on a facebook post from the accused showing what appeared to be the same motorcycle, police, without a search warrant, walked to the top of the driveway, removed the tarp from motorcycle, confirmed that the motorcycle was stolen by running the license plate and vehicle identification num­bers, took a photograph of the uncovered motorcycle, replaced the tarp, and returned to their car to wait for the accused. When the accused re­turned, police arrested him.

The automobile exception allows an officer to search a vehicle without a search warrant as long as the officer has probable cause to believe that evidence or contraband is located in the vehicle.

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Private hospitals to provide free treatment to patients: SC

The Supreme Court of India recently ruled that Delhi’s private hospitals operating on subsidized government lands will have to provide free treatment to patients belonging to economically weaker strata of the society.

“……..when the State largesse is being enjoyed by these hospitals in the form of land beside, it is their obligation by the very nature of the medical services to extend the reciprocal obligation to the public by providing free treatment as envisaged in the impugned order. In case they want to wriggle out of it and not to comply with it, they have to surrender the land and orge out the benefit which they have received by virtue of holding the Government land in an aforesaid manner”, the Court said.

The Court mentioned that there was no necessity of enacting a law, as the policy/rules under which the land has been obtained, the hospitals were obligated to render free treatment as the land was allotted to them for earning no profit and held in trust for public good.

Criticizing private hospitals for operating like commercial centers, the Court said “instances have come to notice when a dead body is kept as security for clearance of bills of hospitals which is per se illegal and criminal act. In future, whenever such an act is reported to the police, it is supposed to register a case against management of Hospital and all concerned doctors involved in such inhumane act”.

The Court also directed the Government of NCT of Delhi to file a periodical report with the Court with respect to compliance of its order by the hospitals.

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Unconstitutional to allow defense counsel to concede guilt over defendant’s objection: USSC

The Supreme Court of the United States of America recently held that it is unconstitutional to allow defense counsel to concede guilt over the defendant’s intransigent and unambiguous objection, even when defense counsel’s experienced-based view is that confessing guilt offers the defendant the best chance to avoid the death penalty.

“The Sixth Amendment guarantees a defendant the right to choose the objective of his defense and to insist that his counsel re­frain from admitting guilt, even when counsel’s experienced-based view is that confessing guilt offers the defendant the best chance to avoid the death penalty”, the Court ordered.

The Court said, “The Sixth Amendment guarantees to each criminal defendant the assistance of counsel for his defense. The defendant does not surrender control entirely to counsel, for the Sixth Amendment, in granting to the accused personally the right to make his defense speaks of the ‘assistance’ of counsel, and an assistant, however ex­pert, is still an assistant.”

“Thus, when a client makes it plain that the objective of his defense is to maintain innocence of the charged criminal acts and pursue an acquittal, his lawyer must abide by that objective and may not override it by con­ceding guilt”, the Court added.

Accused pleaded not guilty for allegedly committing three murders, but his counsel admitted his guilt in front of the jury with a strategy that confessing guilt offers the accused the best chance to avoid the death penalty. The jury found him guilty of all the three murders. The case has been reversed and remanded.

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Forwarded message is equal to accepting the message: MHC

Rejecting the anticipatory bail plea of a local political leader for forwarding an abusive message on social media, the Madras High Court observed that forwarding a message on social media is equal to accepting and endorsing the message.

“Forwarded message is equal to accepting the message and endorsing the message”, the Court said.

“No one has any right to abuse women and if done it is a violation of rights. When calling a person with community name itself is a crime, using such unparliamentarily words is more heinous”, the Court said, and further added that “When a celebrity like person forward messages like this, the common public will start believe it that this type of things are going on. This sends a wrong message to the society at a time when we are talking about women empowerment”.

Petitioner applied for anticipatory saying he received a message from his friend and under the bona fide impression and inadvertent mistake, forwarded the said message without reading the contents and knowing its nature. He said he immediately deleted the message after his friend pointed about the abusive content.

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