The controversial New Year SMS sent by President Mahinda Rajapaksa through two mobile operators on an order by the Telecommunication Regulatory Authority (TRC) has been criticized by some experts as a bias towards one candidate contesting the January 26 Presidential poll.
“It is clearly against the logic of why the TRC was created to regulate the telecom sector,” asserted Rohan Samarajiva, Chair and CEO, LIRNEasia, a telecom policy think tank, a former Director-General of the TRC.
“The whole idea was that a law-governed expert body would shield the operators from arbitrary government actions of the type that resulted in the deterioration of the Sri Lanka Railway, the Transport Board, AirLanka and so on. Leaving aside the question of spam texts, the fundamental issue here is that the TRC appears to have ordered private operators to provide free services to the election campaign of one candidate,” he told the Business Times.
Millions of subscribers of Dialog Telekom and Sri Lankan Telecom Mobitel received the New Year message. Asked to comment, Dialog said in a statement that the transmission of a New Year Message from the President was carried out by the company based on instructions received from the TRC. “In line with prior practice with respect to the transmission of messages instructed by the TRC, the company will not be levying any charges from the
CoTRC for the transmission of this message,” it said.
Mobitel officials too confirmed the request from the TRC and said some of their customers had complained to the company. These complaints were directed to the TRC about a week ago. Some other mobile operators has shown reluctance to engage in the New Year SMS.
TRC sources said the TRC has informed the Elections Commissioner that it ‘only requested’ the operators and did not direct them to carry this message. It was a New Year message from the President and not as a message from a presidential candidate, one source said.
He said that some operators chose not to carry this message, while Mobitel and Dialog went ahead. “They carried it voluntarily and the TRC was not charged,” the source said, adding that if any other candidate wanted such a message carried, there won’t be any objection. “The TRC has also said in the letter to Mr. Dissanayake that as the regulator, the TRC does not permit or allow any operator to promote any candidate,” he said. Director General TRC Priyantha Kariyapperuma was unavailable for comment.
Prof Samarajiva said other presidential candidates who feel that they were wronged by the New Year SMS from the President can file a fundamental rights case against the TRC.
“Any of the other candidates could launch a fundamental rights case. A good administrative lawyer could also seek a remedy by way of writ,” he said, adding that the regulator is expected to guard the licensees (telecom operators) from arbitrary actions of the government. The former TRC DG said the New Year message was no different from the National Transport Commission ordering private bus operators to give their buses free to transport people to one candidate’s meetings, or the Board of Investment ordering garment factories to provide free T-shirts to the one campaign. “It is a form of expropriation that results in the increase of regulatory risk and negatively affects the investment climate,” he said, adding that it is particularly bad that the regulator who is supposed to be the shield against expropriation has now become the instrument.
As per the law, Section 5 (f) of the TRC Act defines a narrow set of conditions “to take such regulatory measures as may be prescribed to comply with any general or special directions that may be given to it from time to time by the Government of Sri Lanka in the interest of national security, public order and the defence of the country.”
Referring to this, Prof. Samarajiva noted, “I leave it to the reader to judge whether an election message falls within the specified categories.
If they do not, the TRC has acted ultra vires.”
When asked about whether it is a breach of privacy to make phone calls to people encouraging them to cast votes for certain candidates (as some SLT subscribers received election propaganda messages through the phone provider), he said that just receiving a call does not constitute a privacy violation. “If calls are repeatedly made, there may be cause for a complaint under Section 59 of the Act 25 of 1991.
There are no specific privacy safeguards in the Act, but again, there may be cause for seeking damages from the operator for unauthorized disclosure of the phone number.”
He said that it is not in the interests of telecom operators to get their customers upset and irritated about intrusions. The best solution is to set up a self-regulatory scheme that will include National Do Not Call Registry and established policy guidelines as is the case already in India.