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    Expert Insights

Telecoms, Media & Internet Laws and Regulations 2024

1 Overview

1.1 Please describe the: (a) telecoms, including internet; and (b) audio-visual media distribution sectors in your jurisdiction, in particular by reference to each sector’s: (i) annual revenue; and (ii) 3–5 most significant market participants.

The telecoms sector in Bahrain, whilst a smaller market than many in the rest of the Gulf region, is dynamic and advanced and by some distance the most competitive. Since ownership was liberalised in the early 21st century, the industry has made a direct contribution to the development of the national economy. One of the Kingdom of Bahrain’s stated visions for 2030 is for the country to have outstanding telecommunications services that will be readily accessible and competitively priced, providing a stable base for business.

 

As stated in previous chapters, this has been reflected in the structural separation in 2019 of the former incumbent telecommunications operator Batelco into a wholesale infrastructure company (BNET BSC (“BNET”)) and a retail operator (Batelco).  According to the objectives of the Fifth Telecommunications Plan (“NTP5”) adopted in 2020, BNET will in time become the sole fibre network infrastructure company of the Kingdom of Bahrain providing access to downstream retail operators on an equivalence of inputs basis. At present, certain operators other than Batelco (whose network infrastructure was transferred to BNET as part of the separation process) continue to own and operate some legacy network assets within the Kingdom, but in line with the objectives of NTP5 these will ultimately be transferred to BNET to achieve a Bahrain broadband network.

 

The bi-annual National Telecommunications Plan sets the legal framework for governing the telecommunications sector and aims to: reinforce the telecommunications infrastructure; provide high-quality services; and encourage innovation and investment in ICT.  The Ministry of Transport and Telecommunications is currently in the process of formulating the Sixth National Telecommunication Plan (“NTP6”) and in summer 2023 awarded Arthur D. Little, an international management consulting firm, responsibility for formulating the plan. 

 

The wholesale services offered by BNET were subject to an extensive market review in 2022/2023, leading to the Telecommunications Regulatory Authority publishing a new Reference Access and Interconnection Offer governing BNET’s services in April 2023.

 

In the retail sector, Bahrain has three key market participants: Batelco; STC (previously Viva); and Zain.

 

It also has several internet service providers (“ISPs”), including Ascentech Telecom, Batelco, Etisalcom Bahrain Company, Infonas, Kalaam Telecom, Nuetel, Northstar Technology, Rapid Telecom, STC, Viacloud, Zain and Zajil Information Technologies International.

 

Bahrain’s telecoms market is regulated by the Telecommunications Regulatory Authority (the “Authority” or the “TRA”), which was established by Legislative Decree No. 48 of 2002 Promulgating the Telecommunications Law (the “Telecommunications Law”) to protect the interests of subscribers and users and to promote effective and fair competition among established and new Licensed Operators.

 

According to GlobalData.com the telecom services market size in Bahrain was valued at $422.5 million in 2022. The market is expected to grow at a CAGR of 3.3% during the forecast period, 2022–2027.

 

1.2 List the most important legislation which applies to the: (a) telecoms, including internet; and (b) audio-visual media distribution sectors in your jurisdiction and any significant legislation on the horizon such as the regulation of online harms, regulation of social media or artificial intelligence (please list the draft legislation and policy papers).

The Telecommunications Law (referred to above) is the primary telecommunications legislation in Bahrain.

 

There are also several important regulations and legal guidance with direct relevance to the telecoms, media and internet sectors in Bahrain:

 

  • Resolution No. 7 of 2021 Promulgating the Access Regulation.
  • Wholesale Inbound Telecommunications Services Regulation of 2012.
  • National Numbering Plan – Approved by Regulation 18 of 2015 of the Telecommunications Regulatory Authority.
  • Position Paper issued by the Authority on the Regulation of Voice over Internet Protocol (“VoIP”) Services 2004 and 2007 (the “VoIP Papers”).
  • Law No. 31 of 2018 with respect to the Competition Promotion and Protection (the “Competition Law”).
  • Law No. 30 of 2018 issuing the Personal Data Protection Law (“PDPL”).
  • Legislative Decree No. 47 of 2002 regarding the organisation of the Press, Printing, and Publishing.
  • Resolution No. 12 of 2016 Promulgating the Internet Safety Regulation.
  • Guidelines issued by the TRA on the adoption of Emergency Orders dated 8 October 2015.
  • Legislative Decree No. 22 of 2006 with respect to the Protection of Author’s Rights and Attendant Rights Law.
  • Resolution No. 11 of 2018 (the “Quality of Service Regulation”).
  • Accounting Separation Regulation issued on 2 August 2004 and amended on 1 March 2018.
  • Resolution No. 2 of 2010 Promulgating the Regulation on Number Portability and Directors Resolution No. 1 of 2014 Promulgating an amendment to the Regulation on Number Portability (Resolution No. 2 of 2010).
  • Law No. 60 of 2014 concerning IT Crimes.
  • Law No. 2 of 2017 for Ratifying the Arab Agreement in Combating IT Crimes.
  • Law No. 16 of 2014 concerning the Protection of State Information and Documents.
  • Position Paper on the Principles for the Costing Methodology for Services Supplied by the National Broadband Network of the Kingdom of Bahrain, 21 September 2020.

There have also been reports indicating that Bahrain is considering amendments to its Cybercrimes Law (passed in 2014), the Access Regulation and the enactment of a new media law to deal with further regulation of electronic data (which may include social media); however, these reported changes have not as of yet, been confirmed.

 

1.3 List the government ministries, regulators, other agencies and major industry self-regulatory bodies which have a role in the regulation of the: (a) telecoms, including internet; (b) audio-visual media distribution sectors; (c) social media platforms; and (d) artificial intelligence in your jurisdiction.

Bahrain has a wide range of bodies overseeing and maintaining involvement in its technological development. Examples of a variety of these institutions include the following:

 

  • the Ministry of Transportation and Telecommunications (the “MOTT”);
  • the TRA;
  • the Ministry of Information Affairs (the “MIA”);
  • the Bahrain Economic Development Board;
  • the General Directorate of Anti-Corruption and Economic & Electronic Security;
  • the National Cyber Security Center;
  • the Information and E-Government Authority; and
  • the Artificial Intelligence Society Bahrain.

The MOTT is responsible for publishing the National Telecommunications Plan once every three years, which sets out the Government’s vision for the telecommunications sector and whose objectives the TRA must carry out in order to achieve its duties.

 

1.4 In relation to the: (a) telecoms, including internet; and (b) audio-visual media distribution sectors: (i) have they been liberalised?; and (ii) are they open to foreign investment including in relation to the supply of telecoms equipment? Are there any upper limits?

The first nation in the Arab Gulf to fully liberalise its telecoms sector was Bahrain. This was done primarily (although not exclusively) through the establishment of the TRA in 2002, and to this day remains one of the most open markets in the region of the Middle East.

 

Bahrain, which is rated third internationally in terms of internet usage, has an estimated 99% of the population online, with a total of 2.09 million lines of mobile subscriptions, 225,797 lines of fixed subscriptions and 2.16 million lines of internet subscriptions.

 

With over 95% coverage in most of the Kingdom’s urban areas, Bahrain is one of the first nations to have a complete 5G network. This success is a crucial step in improving readiness for next-generation ICT services like the Internet of Things and similar cutting-edge technology. In February 2023, the TRA issued a new position paper.

 

The development of a strong and broadly accessible digital infrastructure to serve the developing digital economy in the Kingdom is a goal of the Government, which is reflected in the country’s 5G coverage.

 

NTP5 sets out the Government’s strategic plan and general policy for the Kingdom’s telecommunications sector for the next three years (until October 2023). As part of NTP5, the Government will review the TRA’s recommendations to ensure legal frameworks allow innovators, investors and entrepreneurs to unlock their full potential. The recent publication of BNET’s new Reference Offer indicates that the Kingdom remains committed to the principle of a liberalised and dynamic telecommunications market. In April 2023, the TRA announced that it had become the first Gulf Cooperation Council (“GCC”) national regulator to grant a Licence to Elon Musk’s company SpaceX, to offer Starlink satellite and internet services in the country.

 

As stated above, NTP6 is currently being drafted by the MOTT and supporting agencies and is expected to be published in September/October 2023.

 

2. Telecoms

2.1 Is your jurisdiction a member of the World Trade Organization? Has your jurisdiction made commitments under the GATS regarding telecommunications and has your jurisdiction adopted and implemented the telecoms reference paper?

Bahrain became a member of the World Trade Organization upon its creation on 1 January 1995. Financial services were the only sector in which Bahrain made commitments under the General Agreement on Trade in Services (the “GATS”).

 

2.2 How is the provision of telecoms (or electronic communications) networks and services regulated?

By virtue of the Telecommunications Law, the TRA is a financially and administratively independent juridical entity that assumes the regulation of telecommunications services in the Kingdom.

 

The TRA has the authority, power and duty to (among other things):

 

  • issue regulations, orders and determinations;
  • monitor and investigate compliance by telecommunications providers;
  • give final decisions as to applications for Licences;
  • monitor, modify and enforce compliance with Licence terms and conditions by Licensees;
  • encourage, regulate and facilitate adequate access, interconnection and interoperability of services, including, where necessary, enforcing the sharing by Public Telecommunications Operators of the benefit of facilities and properties;
  • review tariffs to ensure that they are fair and reasonable;
  • adopt and publish technical specifications and standards for the import and use of telecommunications equipment; and
  • examine complaints and resolve disputes.

2.3 Who are the regulatory and competition law authorities in your jurisdiction? How are their roles differentiated? Are they independent from the government? Which regulator is responsible for social media platforms? What statutory basis do they have?

The TRA is a quasi-governmental entity and is both the regulator for and acts as the competition authority in the telecommunications sector. Part of the TRA’s role is to promote effective and fair competition among new and existing Licensed Operators. Article 65 of the Telecommunications Law sets out the rules on the promotion of competition and empowers the TRA to take action to preserve competition.

 

The TRA issued the Competition Guidelines on 18 February 2010, which set out: the TRA’s Guidelines for the definition of relevant markets; the assessment of competition in both retail and wholesale telecommunications markets; and the assessment of anti-competitive conduct. This document also sets out the process and template for lodging a complaint for anti-competitive conduct.

 

Alongside the Telecommunications Law of 2002, there is the Competition Law, which applies to:

 

  • businesses carrying out economic activities in Bahrain;
  • any conduct or arrangement that is intended to or results in the hindering of competition in Bahrain (even if one or more of the parties involved is not incorporated in Bahrain); and
  • economic activities conducted outside Bahrain, which affect competition inside the country.

The Competition Law established the Authority for Promotion and Protection of Competition (pursuant to Article 17). This Authority has a board made up of seven members, of which the General Director of the TRA is one.

 

Social media is regulated by the MIA and is subject to several rules contained in the Constitution and Freedom of the Press Laws. There are also obligations for ISPs under the TRA’s Internet Safety Regulation and a standalone initiative by the TRA called SafeSurf.

 

2.4 Are decisions of the national regulatory authority able to be appealed? If so, to which court or body, and on what basis?

Pursuant to Article 36 of the Telecommunications Law, a Licensee may object to the TRA against any decision or order issued in accordance with the provisions of the Law and the Licensee has the right to appeal against the decision or order in accordance with the dispute resolution provisions.

 

The Licensee has the right to resort to arbitration if it notifies the Authority of its intention to do so within 30 days. The disputed decision, order or action remains in effect unless the Arbitration Panel decides to stay the execution of the decision or to nullify it.

 

2.5 What types of general and individual authorisations are used in your jurisdiction? Please highlight those telecom-based authorisations needed for the installation and/or maintenance of infrastructure?

Chapter 7 of the Telecommunications Law covers licensing. Specifically, Article 24 of the Telecommunications Law requires that an operator of a Public Telecommunications Network providing telecommunications services requires a Licence. Individual Licences or Class Licences are available subject to the rules set out at Articles 29 to 35 of the Telecommunications Law.

 

The TRA’s Licensing Department is responsible for granting Licences and ensuring compliance with applicable Licence conditions.

 

The types of Individual Licences are:

 

  • Individual Mobile Telecommunications Licences.
  • National Fixed Wireless Services Licences.
  • VSAT Licences.
  • Paging Licences.
  • Public Access Mobile Radio Service Licences.
  • National Fixed Service Licences.
  • International Facilities Licences.
  • International Services Licences.
  • Internet Exchange Licences.

The types of Class Licences are:

 

  • Value Added Services (“VAS”) Licences.
  • Internet Services Licences.

A Frequency Licence may also be required by an operator if the Public telecommunications service requires the use of radio frequencies (Articles 24 and 43 of the Telecommunications Law). These are broken down into:

 

  • 2.4 GHz and 5 GHz Frequency Licences.
  • Fixed Point-to-Point Licences.
  • Earth Station Licences (Under Consideration).

All equipment connected to a Public Telecommunications Network by means of radio requires a Licence, unless that equipment is covered by an operator’s Frequency Licence. A Licence may be renewed for an additional 10 years after its initial 15-year term has expired.

 

2.6 Please summarise the main requirements of your jurisdiction’s general authorisation.

Under Article 26 of the Telecommunications Law, for Individual and Class Licences to be granted, the prospective licensee must:

 

  1. be a juristic entity incorporated in Bahrain or a branch of a foreign entity licensed to operate in Bahrain; and
  2. locate substantially all infrastructure within Bahrain.  It must maintain all operational activities associated with the provision of services in Bahrain.

Individual Licences may only be granted on the recommendation of the General Director of the TRA, following ratification by the TRA’s Board of Directors, and in all cases attracts a Licence Fee.

 

Individual Licences are granted for the use of radio frequency spectrum, telephone numbers under the National Numbering Plan (see below) and for the provision of mobile telecommunications services or internet exchange services.

 

2.7 In relation to individual authorisations, please identify their subject matter, duration and ability to be transferred or traded. Are there restrictions on the change of control of the licensee?

As per the above, Individual Licences require the use of some form of resource, such as land, spectrum or numbers.

 

Class Licences, such as the VAS Licence and Internet Services Licence, do not.  Licences are typically granted for a term of 15 years and may be renewed for a further 10 years.

 

Telecommunications Licences are personal and may not be assigned to a third party without the prior written consent of the Authority.

 

The TRA must be informed within seven days if an entity directly or indirectly acquires a stake of 5% or more in an individual licensee. The TRA has the power to modify and revoke Individual Licences under the Telecommunications Law and to modify or revoke a Class Licence, though only after advance notice is provided in the Official Gazette.

 

2.8 Are there any particular licences or other requirements (for example, in relation to emergency services) in relation to VoIP services?

As addressed by the VoIP Papers, for a VoIP service provider to be required to hold a Telecommunications Licence under Article 24 of the Telecommunications Law, it must be providing a telecommunications service in Bahrain. Under the law, the concept of a “telecommunications service” is not explicitly defined. It can, however, be construed by reference to the definition of “Telecommunications” under the Telecommunications Law as the provision of a service that consists of the “conveyance and/or routing of messages, sound, visual images or signals on a Telecommunications Network”.

 

The TRA considers that the use of VoIP technology within an operator’s core network does not necessarily change the nature of the services offered to customers, for example, the offer of international telephone calls, and therefore ordinary licensing rules, will generally apply.

 

VoIP services that are internet based are regulated as internet services, whereas VoIP services that are a technological development of or that emulate “traditional” publicly available telecommunications services are regulated as ordinary voice services.

 

2.9 Are there specific legal or administrative provisions dealing with access and/or securing or enforcing rights to public and private land in order to install telecommunications infrastructure?

Under Article 59 of the Telecommunications Law, a Public Telecommunications Network Operator has the right to construct any installation or install connections required for the construction, development or maintenance of its network on, under, through or alongside public property if the following conditions are satisfied:

 

  1. The Authority considers such works necessary.
  2. The conditions of the Licence permit such a matter.
  3. The operator obtains the necessary approvals and permits.
  4. Necessary measures are taken for the protection of public infrastructure installations.
  5. Public property is restored to the condition in which it was before such work was carried out and repair of any destruction or damage to such property is effected.
  6. Compliance with the rules promulgated by virtue of a resolution by the Council of Ministers in connection with the use of public property.

A Public Telecommunications Network Operator must also comply with provisions relating to the protection of the environment and historic and tourist sites (Article 60 of the Telecommunications Law).

 

Under Article 61 of the Telecommunications Law, a Public Telecommunications Network Operator has the right to construct any installation or install any connections required for the construction, development or maintenance of its network on, under or through private real property after concluding an agreement between the network operator and the owner of such real property.  This is subject to further conditions and authority from the TRA.

 

2.10 How is wholesale interconnection and access mandated? How are wholesale interconnection or access disputes resolved?

The status of wholesale interconnection has been simplified by the creation of BNET as the sole (or soon to be the sole) Bahrain infrastructure operator. Its wholesale products are subject to a Reference Access and Interconnection Offer approved by the Authority, as well as the terms of BNET’s Licence.

 

Currently, Public Telecommunications Operators are subject to Article 57 of the Telecommunications Law and the Wholesale Inbound Telecommunications Services Regulation of 2012.

 

A Public Telecommunications Operator has the right to interconnection and shall negotiate in good faith on request for the interconnection of its Telecommunications Network at any technical feasible point to the Telecommunications Network of another Public Telecommunications Operator and in each case as specified in its Licence or in the regulations issued by the Authority.

 

A Public Telecommunications Operator may refer to the Authority any dispute that arises between it and any other Operator with respect to interconnection or access, for the Authority to resolve such dispute.

 

2.11  Which operators are required to publish their standard interconnection contracts and/or prices?

A Public Telecommunications Operator determined by the Authority to have a dominant position in a particular Telecommunications market must, within three months of such determination and every six months thereafter, publicise a reference interconnection offer after obtaining the TRA’s approval to such offer. In practice, for most wholesale markets, this is now BNET.

 

Such offer must include a full list of basic interconnection services, conditions of interconnection and the tariff for every service.

 

2.12 Looking at fixed, mobile and other services, are charges for interconnection (e.g. switched services) and/or network access (e.g. wholesale leased lines) subject to price or cost regulation and, if so, how?

Licensed Operators with significant market power are subject to tariff controls in relation to any Telecommunications services for which the TRA determines that insufficient competition exists.

 

Tariffs charged by Licensed Operators for their Telecommunications services must be fair and equitable, non-discriminatory, and based on forward-looking costs. The TRA has the authority to review and control tariffs, establish the basis for tariff definition and tariff rebalancing plans and take any other steps necessary.

 

Through the Wholesale Inbound Telecommunications Services Regulation of 2012, the TRA introduced a price floor for wholesale inbound services supplied to all foreign operators.

 

In January of 2020, the TRA further issued a Position Paper on the Principles for the Costing Methodology for Services Supplied by the National Broadband Network of the Kingdom of Bahrain.

 

2.13 Are any operators subject to: (a) accounting separation; (b) functional separation; and/or (c) legal separation?

The TRA has the power to issue regulations, orders and determinations on accounting separation relating to each service.

 

The Authority may order a Licensed Operator to separate into two or more entities if it determines that separation is necessary for the promotion of sustainable competition or the deployment of a Fixed Telecommunications Infrastructure Network, or based on the request of the Licensed Operator to enable the deployment of a Fixed Telecommunications Infrastructure Network.

 

As stated, in 2019 Batelco was separated into BNET, the entity responsible for deploying and managing fixed wholesale broadband and domestic connectivity services to Licensed Operators, and its retail arm.

 

The TRA further issued the Accounting Separation Regulation on 2 August 2004, amended on 1 March 2018, which sets out the requirements for accounting separation by licensees.

 

2.14 Describe the regulation applicable to high-speed broadband networks. On what terms are passive infrastructure (ducts and poles), copper networks, cable TV and/or fibre networks required to be made available? Are there any incentives or ‘regulatory holidays’?

BNET was partly set up to accelerate the growth and economic diversification of the telecommunications sector, including rolling out a fibre optic network to 100% of all businesses and 95% of all households across the Kingdom of Bahrain. BNET provides the backbone to new mobile technologies, such as 5G and access to international cable systems. BNET is responsible for the Kingdom’s communication infrastructure reaching nearly every household and business in the country.

 

The Quality of Service Regulation applies to all Licensed Operators that offer a Monitored Service to mass market subscribers and serve at least 1,000 subscribers.

 

This Regulation sets out a framework for the measuring, reporting, monitoring, auditing and enforcing of the quality of service of telecommunications services in the Kingdom of Bahrain. It imposes obligations on Licensed Operators to periodically measure and submit to the Authority a set of Measurements of the Monitored Services that they provide, including the supply times for Fixed Line (fibre) and Fixed Line (copper) services.

 

2.15 Are retail price controls imposed on any operator in relation to fixed, mobile, or other services?

On 3 June 2019, the TRA issued an order setting the fair, reasonable and non-discriminatory price and non-price terms of regulated wholesale products and services. The Arab Price Benchmarking Report published in 2023 highlighted notable reductions in residential fixed-broadband prices (18.6%) and in mobile broadband (16%) between 2021 and 2022, attributed to the TRA’s efforts in promoting competition within the broadband market. As a result, Bahrain ranks among the top 20 countries worldwide in fibre penetration, according to 2023 Fibre-to-The-Home (FTTH) Broadband Global Ranking, published by FTTH Council Europe.

 

Also, mobile prices in Bahrain are the most affordable in the GCC, with a decrease of up to 58.5% between 2021 and 2022. This significant drop can be attributed to the introduction of new mobile packages offering lower prices and enhanced benefits.

 

Furthermore, the draft Position Paper on the Principles for the Costing Methodology for Services Supplied by BNET (referred to above) provides a consultation to identify and discuss the key features and principles to support the development, implementation and use of an appropriate pricing framework for regulated wholesale services provided. 

 

According to a TRA survey, Bahraini consumers have benefitted from a variety of retail telecoms services and more data at more affordable costs than other countries.

 

2.16 Is the provision of electronic communications services to consumers subject to any special rules (such as universal service) and if so, in what principal respects?

Under Article 64 of the Telecommunications Law, a Public Telecommunications Operator with significant market power must provide at its prevailing standard rates a basic public telephone service to any person requesting such service.

 

It was stated in the third National Telecommunications Plan in 2012 that the Government required affordable and appropriate ultra-fast broadband services, in addition to voice services, to be made available to all that reasonably require them and that the Government shall determine, at a time when the extent of availability of ultra-fast broadband services may be reasonably assessed, whether the existing arrangements related to universal service provision and obligations should be withdrawn and replaced by arrangements that include ultra-fast broadband services. No such universal arrangements are in place; however, the establishment of BNET may soon enable this.

 

2.17 How are telephone numbers and network identifying codes allocated and by whom?

The TRA regularly updates and publishes reports in the country’s National Numbering Plan, which was issued on 22 September 2003. This provides a framework for the allocation of numbers in the national telecommunications system to competing service providers. The Licences issued to the operators require that they maintain their own individual numbering plans in compliance with the National Plan.

 

2.18 Are there any special rules which govern the use of telephone numbers?

Please see question 2.17 above.

 

2.19 Are there any special rules relating to dynamic calling line identification presentation?

This is not applicable.

 

2.20 Are there any obligations requiring number portability?

Pursuant to Article 40 of the Telecommunications Law, Number Portability must be provided in fixed and mobile services by: Public Telecommunications Operators with significant market power; and other Licensees whose Licence provides for obligations to subscribers and users or other Licensees.

 

Resolution No. 2 of 2010 Promulgating the Regulation on Number Portability and Directors states that all Licensees are required to implement Number Portability.

 

Residents in the Kingdom of Bahrain have enjoyed flexibility in transferring personal numbers freely between the telecoms service providers since the number portability facility was introduced by the TRA in July 2011.

 

As per the revised regulation, service providers are legally bound to complete any mobile number portability request made by the consumer within a period of eight business hours. Similarly, the processing time period for any fixed number portability request is also eight business hours, but can be extended for another eight business hours in the event of technical difficulties.

 

As another major initiative by the TRA, citizens of the GCC who had availed telecommunications services in the Kingdom of Bahrain using their GCC IDs can also benefit from the facilities of number portability by producing their GCC ID while making a portability request to the concerned service provider. All GCC ID smart cards were made valid for both government and non-governmental purposes via Legislative Decree No. 2 of 2013.

 

3. Radio Spectrum

3.1 What authority regulates spectrum use?

The Information and E-Government Authority regulates spectrum use in accordance with the National Frequency Plan 2020.

 

3.2 How is the use of radio spectrum authorised in your jurisdiction?  What procedures are used to allocate spectrum between candidates – i.e. spectrum auctions, comparative ‘beauty parades’, etc.?

The National Frequency Plan 2020 is a key instrument in spectrum resource management, providing information on which radiocommunication services are permitted in each frequency band in the Kingdom of Bahrain. It is a source document and a technical guide for importers, manufacturers and all users of radiocommunications equipment, as well as for foreign administrations and regional telecommunications organisations.

 

The Wireless Licensing, Frequencies and Monitoring Directorate (the “WLMFD”) aims to ensure the rational, fair, efficient and economical use of the frequency spectrum while continuing to support growth, sustainability and ensure long-term spectrum availability for all radiocommunication services.

 

As per the Schedule of Fees Regulation, where the spectrum is perceived to have a commercial value, which exceeds the Fees set by the Schedule of Fees, then a separate allotment process (competitive auction, comparative hearing or direct attribution) is applied in order to determine the relevant Spectrum Usage Rights Fee.

 

3.3 Can the use of spectrum be made licence-exempt? If so, under what conditions? Are there penalties for the unauthorised use of spectrum? If so, what are they?

No person may operate a Telecommunications Network that uses frequency spectrum in the Kingdom of Bahrain or operate or use any radiocommunications equipment associated with such a network without obtaining a Licence from the Authority (Article 43 of the Telecommunications Law).

 

3.4 If licence or other authorisation fees are payable for the use of radio frequency spectrum, how are these applied and calculated?

The Schedule of Fees Regulation sets out the Annual Frequency Licence Fee to be paid to the Authority on an annual basis for the usage of radio frequency spectrum assigned or allotted.

 

3.5 What happens to spectrum licences if there is a change of control of the licensee?

There is no change of control provisions in the Telecommunications Law; however, as noted above, substantially all of the infrastructure and personnel of the telecommunications service must be located within Bahrain.

 

3.6 Are spectrum licences able to be assigned, traded or sub-licensed and, if so, on what conditions?

Within the framework of the National Frequency Plan 2020, the TRA is responsible for the coordination, assignment and monitoring the enforcement of telecommunications frequencies.  (Article 42 of the Telecommunications Law.)  Licences cannot be assigned to third parties.

 

4. Cyber-security, Interception, Encryption and Data Retention

4.1 Describe the legal framework for cybersecurity. Are there any specific requirements in relation to telecoms operators?

The National Cyber Security Center was established by Royal Decree No. 65 of 2020; it is well regarded for its strategic and technical abilities, providing consultation for a range of entities.

 

The National Cyber Security Center includes the following directorates:

 

  • Cyber Security Directorate.
  • Security Systems Development Directorate.
  • Cyber Policies Directorate.
  • National Response Directorate.
  • Coordination and Analysis Directorate.
  • Support and Computer Operations Directorate.
  • Security Systems Development Directorate.
  • Follow-up and Education Directorate.

The TRA, in coordination with the National Cyber Security Center, ensures resiliency of national Telecommunications Infrastructure and implements, in coordination with the relevant cyber security entity and relevant stakeholders, a telecommunications sector-specific emergency and disaster recovery plan to complement the Critical Telecommunications Infrastructure Risk.

 

The TRA sets out the requirements on the sector to identify, detect, protect and respond to cyber security threats alongside recovering from related incidents and ensure that appropriate regulatory measures, information and awareness measures and training are undertaken to mitigate cyber security risks.

 

The law relating to cybercrime includes:

 

  • The Constitution.
  • The Penal Code.
  • Law No. 60 of 2014 concerning IT Crimes.
  • Law No. 2 of 2017 for Ratifying the Arab Agreement in Combating IT Crimes.
  • Law No. 16 of 2014 concerning the Protection of State Information and Documents.

In recognition of the growing cyber threat and the need to update existing law, Bahrain is due to introduce a new cybercrime law, based on the European Convention on Cybercrime of 2001, among other international laws.

 

4.2 Describe the legal framework (including listing relevant legislation) which governs the ability of the state (police, security services, etc.) to obtain access to private communications.

Article 26 of the Constitution states that all written, telephonic, and electronic communications “shall not be censored or their confidentiality be breached except in exigencies specified by law and in accordance with procedures and under guarantees prescribed by the law”.

 

Legislative Decree No. 47 of 2002 regarding the organisation of the Press, Printing, and Publishing states that any restraints on the flow of information that might cause unequal access to information for newspapers or disrupt citizens’ rights to knowledge are only prohibited if they violate public security and the nation’s supreme interests (Article 32).

 

Bahrain ratified the Arab Convention on Combating IT Offences by way of Law No. 2 of 2017 for Ratifying the Arab Agreement in Combating IT Crimes. This Convention provides standards for the prevention of cybercrime and dictates that every State Party shall commit itself to adopting, in its domestic law, the pieces of legislation and procedures necessary to:

 

  • obtain the expeditious custody of information, including information for tracking users, that was stored on IT, especially if it is believed that such information could be lost or amended;
  • issue orders to submit certain information in his possession that is stored on IT or a medium for storing information; and
  • enable its competent authorities to inspect or access IT or part thereof.

4.3 Summarise the rules which require market participants to maintain call interception (wire-tap) capabilities. Does this cover: (i) traditional telephone calls; (ii) VoIP calls; (iii) emails; and (iv) any other forms of communications?

Under Article 78 of the Telecommunications Law, every Licensed Operator must undertake to provide, at its own expense, all technical resources, including telecommunications equipment, systems and programs relating to the Telecommunications Network that it is licensed to operate, and which allow security organs to have access to the network for fulfilling the requirements of national security.

 

4.4 How does the state intercept communications for a particular individual?

Article 79 of the Telecommunications Law states that if a state of national safety or martial law is declared, the competent Authority may requisition the Telecommunications services and networks of any Licensed Operator as well as the personnel of such operator working in the operation and maintenance of such services and networks, in order to address the circumstances in respect of which the state of national safety or martial law has been declared. All affected Licensees must also comply with the terms of the TRA’s Lawful Access Regulation. As above, every Licensed Operator must have systems that allow security organs to have access to the network in order to fulfil the requirements of national security.

 

Moreover, the Cyber Security Directorate was launched in November 2013 to monitor websites and social media networks, ostensibly to “ensure they are not used to instigate violence or terrorism and disseminate lies and fallacies that pose a threat to the kingdom’s security and stability”.

 

4.5 Describe the rules governing the use of encryption and the circumstances when encryption keys need to be provided to the state.

Bahrain restricts the use of many VPNs and encryption technologies.

 

Under Article 9 of Law No. 60 of 2014 concerning IT Crimes, any person who uses encryption to commit or conceal crime is punished by imprisonment and a fine not exceeding BD 100,000, or both.

 

4.6 Are there any specific cybersecurity requirements on telecoms, cloud providers or social media platforms? (If so, please list the relevant legislation.)

Alongside Article 78 of the Telecommunications Law, there is the Cloud First Policy launched by the Information and E-Government Authority on 14 June 2017. Service providers engaged by government agencies will be required to meet international security standards and ensure appropriate certification. They will abide by all relevant industry standards (for example, international security standards such as ISO 27001, Service Organization Controls Report (“SOC”) 1 and 2) and will adhere to any additional certifications required by specific industries, such as the Payment Card Industry Data Security Standard (the “PCI DSS”), and Cloud Security Alliance (“CSA”) certification and audit, among others.

 

4.7 What data are telecoms or internet infrastructure operators obliged to retain and for how long?

Data protection law is contained within Law No. (30) of 2018 issuing the PDPL.  This does not stipulate a precise time for data retention; however, it does give the following guidelines:

 

  1. The treatment of data must be fair and legitimate.
  2. The data has been collected for a legitimate, specific and clear purpose, the subsequent processing of which is not inconsistent with the purpose for which it was collected, such as for historical, statistical or scientific research, provided that it is not used to support any decision or action taken regarding a specific individual.
  3. The data is sufficient, relevant and not excessive in view of the purpose of its collection or for which the subsequent treatment was carried out.

The Law provides data subjects with the right to erase their personal data at any time by sending a written application to the data controller.

 

Article 2.4(b) of the Law exempts national security-related data processing undertaken by the Interior Ministry, national security apparatus, Defence Ministry and other security services.

 

On 17 March 2022, Bahrain’s Minister of Justice, Islamic Affairs and Waqf issued 10 ministerial resolutions (the “Resolutions”) supplementing the PDPL and bringing the PDPL more into line with international standards such as the European General Data Protection Law. The Resolutions are focused on the following areas:

 

  • transfers of personal data outside Bahrain;
  • technical and organisational measures to protect personal data;
  • notification procedures;
  • sensitive personal data processing;
  • data protection guardians (i.e. DPOs);
  • fees for DPO registration;
  • data subject rights;
  • complaints by individuals;
  • data relating to criminal claims; and
  • conditions for publicly available registers.

 

5. Distribution of Audio-Visual Media

5.1 How is the distribution of audio-visual media regulated in your jurisdiction?

The distribution of audio-visual media is regulated by the MIA and is subject to several rules, namely the Constitution and the Charter of the Kingdom of Bahrain and Legislative Decree No. 47 of 2002 regarding the organisation of the Press, Printing, and Publishing.

 

Furthermore, the MIA has released a “Professional Code of Conduct for Audio-Visual Media”, which promotes ethical practices within the industry.

 

5.2 Is content regulation (including advertising, as well as editorial) different for content broadcast via traditional distribution platforms as opposed to content delivered over the internet or other platforms? Please describe the main differences.

Legislative Decree No. 47 of 2002 regarding the organisation of the Press, Printing, and Publishing dictates the terms of freedom of the press and limitations on content in the Kingdom.

 

Section Two (printing and publishing) states that no publication is to be circulated without prior permission from the directorate, excluding publications with a special character and non-commercial ones (Article 18).  Publications are defined as writings, paintings, songs, images, audio or audio-visual products, etc. and other means of expression whether written, photographic or recorded in any way, including electronic, digital, affixed, magnetic, electronic or any other new technology prepared and capable of circulation.

 

The Telecommunications Law also stipulates the approvals process for the circulation of publications, movies, recorded publications and newspapers.

 

Some websites (particularly of a political nature) are blocked by the State.  In August 2016, the TRA ordered all telecommunications companies to employ a centralised system for blocking websites managed by the TRA by Resolution No. 12 of 2016 Promulgating the Internet Safety Regulation (see below).

 

5.3 Describe the different types of licences for the distribution of audio-visual media and their key obligations.

Further to question 5.2 above, a Media Product Licence Issuance Request must be made to the MIA to obtain a Licence to write and produce media products, such as television series, short movies and theatrical plays.

 

5.4 Are licences assignable? If not, what rules apply? Are there restrictions on change of control of the licensee?

Article 53 of Legislative Decree No. 47 of 2002 regarding the organisation of the Press, Printing, and Publishing states that a newspaper licensee may assign a Licence to a third party after approval from the MOTT provided that the licensee would have fulfilled the prescribed conditions for licensure from the beginning.

 

The new proprietor shall replace the previous proprietor in all matters stipulated for in this Law once the aforesaid approval has been issued.

 

The MOTT is notified of any change in the editor-in-chief or editor in charge, if any, at the time of the issuance of the newspaper or changing of its capacity.

 

Telecommunications Licences are not assignable.

 

6. Internet Infrastructure

6.1 How have the courts interpreted and applied any defences (e.g. ‘mere conduit’ or ‘common carrier’) available to protect telecommunications operators and/or internet service providers from liability for content carried over their networks?

Under the Internet Safety Regulation, an ISP must ensure that it complies with any Website Compliance Request (blocked websites) by the TRA within 24 hours of receipt.

 

An ISP must also comply with the Unified Technical Solution to automatically prevent access to all websites (or other content) recorded on the Prohibited Material List.

 

Since 2009, the TRA has mandated that all telecommunications companies must keep a record of customers’ phone calls, emails and website visits for up to three years.

 

To receive an Operating Licence, the ISP must develop a “lawful access capability plan” that would allow security forces to access communications metadata.

 

There is no precedent case law in this respect; however, the provider 2Connect had its Licence revoked in February 2016 due to its failure to set up said plan and BNET has been fined for failures to comply with information access requests in 2017.

 

6.2 Are telecommunications operators and/or internet service providers under any obligations (i.e. to provide information, inform customers, disconnect customers) to assist content owners whose rights may be infringed by means of file-sharing or other activities?

Bahrain has passed Legislative Decree No. 22 of 2006 with respect to the Protection of Authors’ Rights and Attendant Rights Law, which relates to the protection of copyright and neighbouring rights. Pursuant to Article 47, ISPs are subject to civil liability and will be liable if, through their network or system, they are found to have deliberately instigated a copyright infringement violation, or participated in it to a significant degree, or are found responsible for it, having been aware of the infringing activity.

 

Certain conditions are provided which may save ISPs from the obligation to pay economic compensation for any violation of rights under Articles 48 and 49.

 

It is not necessary for service providers to monitor the services they provide, or for them to strive affirmatively to discover anything indicating the presence of infringing activities, beyond the limits laid down for standard technological measures.

 

6.3 Are there any ‘net neutrality’ requirements? Are telecommunications operators and/or internet service providers able to differentially charge and/or block different types of traffic over their networks?

Bahrain does not have any specific net neutrality requirements. A Position Paper on Internet and Online Applications dated 6 October 2016 and published by the TRA identified the scope for potential regulatory intervention to create a level playing field through regulatory instruments and discussed net neutrality; however, legislation in this area remains to be seen.

 

6.4 Are telecommunications operators and/or internet service providers under any obligations to block access to certain sites or content? Are consumer VPN services regulated or blocked?

See question 4.5 above.

 

6.5 Is there any regulation applicable to companies that act as ‘intermediaries’ or ‘platforms’ in their role of connecting consumers with goods, services, content, or are there any proposals for such regulation? Include any proposals or legislation regulating social media platforms in relation to online content or safety.

BNET provides fixed wholesale broadband and domestic connectivity services to the retail arm of Batelco and to other Licensed Operators.

 

As a Licensed Operator themselves (for the Telecommunications Infrastructure Network), BNET is subject to several regulations, such as the Access Regulation. Any provider of website services in Bahrain would also be subject to the Internet Safety Regulation.

 

Proposals for regulator social media platforms include the proposed Bahrain Council for Child Internet Safety (the “BCCIS”), which will include representatives from government ministries and other relevant organisations. It will oversee all issues about internet safety, including social media platforms, to create a safe harbour for children and young adults. At the present time, these proposals have not, however, led to specific regulations being enacted. 

 


 

Reproduced with permission from International Comparative Legal Guide. This article was first published in the International Comparative Legal Guide – ICLG - Telecoms, Media and Internet Laws and Regulations. For further information, please visit: https://iclg.com/

 

 

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