ICM Act legislation will have to wait for the next elected parliament

Certain changes had to be made to the earlier draft amendment bill that was finalized in March

The legislation of Bhutan Information Communications and Media Amendment (ICM) Bill 2012 will have to wait for the next elected government.

The ICM Bill, after certain major consultations was scheduled to be submitted to the Cabinet Secretariat by the ministry of information and communications (MoIC) early this year in time for the summer session of parliament. However, Department of Information and Media (DoIM) officials said it had to be kept on hold owing to certain additional changes that had to be incorporated in the draft.

“An Indian consultant was hired to look into it especially the provisions relating to information technology,” DoIM’s legal officer Sonam Dorji said.

Meanwhile, unless it is an “urgent bill”, no new bills will be introduced during the upcoming winter session, also the last session for the incumbent members.

Which means, even upon completion of the draft, the bill will not be discussed within the existing government’s tenure. DoIM officials said the department initially targeted the winter session of parliament for deliberations and legislation of the bill. “We were ready for a presentation on the bill to the cabinet but was put away since honorable Lyonchhen said no more new bills will be introduced,” the legal officer said.

“Moreover, it is a broad and vast bill which would consume a lot of time in parliament and may not be able to pass in one session,” he added.

The existing converged ICM Act was enacted by the National Assembly in 2006 and deals with all the regulatory aspects related to ICT sector and media. In the new draft certain provisions which were conflicting with other laws, or were either too elaborative and not in keeping with the current situation had to be deleted while some vital provisions were introduced.

DoIM officials said the converged Act had a lot of grey areas especially cyber security in 2006 and are not in line with the evolution of technology. While some clauses relating to broadcasting, cross media ownership among others have been looked into, obsolete clauses were deleted.

According to MOIC’s earlier amendment proposal, with rapid development of Information Communication Technology (ICT) over the recent years, the provisions under the existing Act required changes and more stringent provisions needed to be incorporated especially dealing with arbitration, broadcasting, spectrum management, and communication during emergency/disaster, data security and privacy issues.

It was felt that it was of imperative importance to adequately address provisions related to cyber security, data protection and privacy especially to build investors’ confidence in Bhutan and attract FDIs in the IT and Information Technology Enabled Service (ITES) industries.

The final draft also draws a line between ICT and media in an attempt to effectively take care of all emerging issues for the efficient growth of both.

A fresh chapter is ‘cyber security‘ aimed at protecting all forms of personal rights and security accorded to the citizens in the cyber world. A part of this chapter includes establishment of an agency or department of the government to be ‘Bhutan Computer Incidence Response Team’ which will serve as the national agency for performing all cyber security related functions.

A clause from the new chapter, ‘data protection’ states that “where any legal entity possessing, dealing or handling any personal data, including sensitive personal data or information in a computer, computer network, data, computer database or software which it owns, controls or operates, is negligent in implementing and maintaining reasonable security practices and procedures and thereby causes wrongful loss or wrongful gain to any person, such legal entity shall be liable to pay damages by way of compensation to the person so affected.”

The chapter also includes procedures to penalize a person involved in disclosure of data or information in breach of lawful contract, unauthorized downloading, copying and extraction of data tampering with computer source code breach of confidentiality and privacy among others.

The amended Act also equips BICMA with ‘immunity against suit for violation of intellectual property rights’ which means no action for violation of copyright or other intellectual property or related rights, whether under civil law or criminal law, may be brought against BICMA or any member, officer or employee of the authority in respect of any act carried out by a third party merely on the ground that the authority has granted a license, permit or other authorization under this Act to such party.

“No legal proceeding or suit shall lie against any member of the authority and an employee of the authority in respect of official duties, which is done in good faith pursuant to the provisions of this Act,” states a provision in the final draft Bill.

It also clarifies the confusion of who has the power to issue license for ICT and media services. It says, the authority (BICMA) ‘having regard to the necessity of serving the public interest, ensuring competition and preventing of the emergence of monopolies in the provision of ICT facilities and ICT services may grant licenses in accordance with the provisions of this Act’. There hasn’t been many changes made to the clauses pertaining to cross-media ownership.

This amendment is seen as instrumental in streamlining the development, regulating and in creating an enabling environment for progressive growth of ICT and media. The final Draft Amended ICM Bill, 2012 is now available for reference on the DoIM website.

DoIM officials said there hasn’t been any feedback on the final draft till date.

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