The Union government’s ambitious vision of Digital India and its goals of “Catalysing New India’s Techade” are well known. Among the various measures envisioned to make these goals a reality is the proposal of a “modern digital law”. Around the same time that the idea for a new digital law was floated, the government shared its vision of a “comprehensive legal framework” for the digital ecosystem. This framework was to encompass a “new telecom law, information technology law, and user privacy law”.
The Ministry of Electronics and Information Technology (MeitY) has for some time now indicated its intent to draft a fresh law that is truly reflective of the developments in India’s digital technology ecosystem. The current legislation that regulates e-commerce and transactions in India is the Information Technology (IT) Act, 2000.
In the past two decades, technological realities across the globe have seen drastic transformations, which has reinforced the need to reassess not just the legal and economic impacts but also the social impacts of digitisation. The proposed Digital India Bill (DIB), which will overhaul the IT Act, is indicative of the Union government’s recognition of this paradigm shift in the Internet ecosystem.
The DIB, still a work in progress, ostensibly since the past year, has garnered a lot of attention and interest, much of it fed by the coverage around the unofficial statements made by Ministry officials.
According to these statements, the Bill aims to catalyse the country’s digital ambitions and govern the online ecosystem, while relying on the guiding principles of openness, user safety, and trust.
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While consistently invoking these principles over the past year, information on the timeline of the Bill has been inconsistent. The Bill was proposed to be released as early as May last year. But, as media reports indicated, the date for the release of the draft for public consultation remained unclear.
Then, after months of delay and several updates on the ambiguous final date, the Ministry indicated that the Bill would be released in December 2022. Even then, public consultation did not take place in the following few months.
Now, after much delay, a “public” consultation was initiated earlier this month. The consultation with stakeholders happened in Bengaluru on March 9. However, neither a draft version of the Bill nor a White Paper on the Ministry’s initial thoughts has been released.
In the absence of specifics about the contents of the Bill, it becomes necessary to make inferences based on the statements and actions of the Ministry so far.
In regulation mode
The Ministry has expressed concerns with how the Internet has changed from a “space for good” to a “space for criminalities and illegalities” in the past 20 years.
There is no denying that the Internet has become host to a range of new and complex user harms. While the Ministry has shared some examples of these, it fails to share with stakeholders its understanding and assessment of these harms.
This is a matter of concern given that there are deeper societal issues at work, the nuances of which may be lost if the approach is one of “regulation” at the technology layer rather than studying and understanding them first.
While the Ministry has underlined the crimes on the Internet, the benefits enabled by the Internet must also be recognised and preserved. There is little clarity on how the government plans to make the challenging trade-offs between the benefits and risks/harms.
The Ministry has indicated that it would rely on a “principles and rules-based approach”, wherein the government would provide a legislative framework under certain governing principles, followed by notification of sector- or theme-specific rules. The Ministry said these rules will likely be prescriptive in nature.
The proposed key components of the DIB include the regulation of dominant ad-tech platforms, app stores, and so on for prevention of market power concentration and for gatekeeping as well as the possibility of “age-gating” by regulating addictive tech.
The Bill will also touch upon the idea of “discretionary moderation of fake news” by social media platforms as well as “content monetisation rules for platform-generated and user-generated content”.
The decision to introduce new categories of intermediaries did not come as a surprise; on separate instances, the Ministry had already created fresh classes of intermediaries by amending the IT Rules, 2021. These categories include social media intermediaries, significant social media intermediaries, and online gaming intermediaries.
Safe harbour question
The various kinds of intermediaries for which separate rules may be drafted are digital media, AI, gaming, e-commerce, OTT platforms, telecom service providers, ad-tech, significant social media intermediaries, search engines, and even fact-checking portals.
While one is getting used to several types of intermediaries, and the challenges that come with defining them, the Bill raises the question of whether or not all intermediaries deserve safe harbour.
“The safe harbour provision, which is pivotal to ensuring free speech online, must be retained and preserved.”
Such a fundamental change in the regulatory framework will impact a host of entities on the Internet. Section 79 of the IT Act provides legal immunity to intermediaries who host user-generated content and exempts them from liability for the actions of users on their platform as long as they adhere to due diligence requirements prescribed by the government.
Fundamentally altering this provision may have detrimental effects on innovation and freedom on the Internet. The safe harbour provision, which is pivotal to ensuring free speech online, must be retained and preserved. The principles of openness, trust, and safety for the Internet that the Ministry lauds must be applied to platforms and users alike.
Tackling online crime
While there is no denying that cybercrimes have risen and the complexity of harms/risks have increased, it is important to question if regulation, content moderation, and imposition of penalties are the only ways to address them.
On the broader level, attempting to regulate all these unique harms/risks/entities under a single framework could result in an unsatisfactory balancing act.
The risk of overlap and thus, legislative ambiguity, also exists in the case of the e-commerce sector, the financial sector, market domination and consumer protection, advertising in the education sector, and so on, where sectoral regulators are also stepping up. These concerns, while extremely pertinent, will come up only at a future date.
Immediate attention must be paid to the ongoing consultation process to ensure that they contribute more to the process than to just generating headlines. In ensuring that the consultation exercise is transparent, the Ministry would do well to consider the approach adopted in Britain (Online Safety Bill) and Europe (Digital Safety Act) as suitable points of reference.
Although these pieces of legislation are not without their significant faults, their commitment to an open, deliberative, and extensively documented public consultation process is worth noting.
Healthy precedents for public consultation set under the Pre-Legislative Consultation Policy (PLCP), 2014, in India, such as provisions to send comments/submissions within a reasonable duration (no less than 30 days), making the comments publicly available, and allowing for counter comments must also be adopted for framing a new digital legal framework.
Tejasi Panjiar is the Associate Policy Counsel and Prateek Waghre is the Policy Director at the Internet Freedom Foundation.
- The current legislation that regulates e-commerce and transactions in India is the Information Technology (IT) Act, 2000.
- The proposed Digital India Bill, which will overhaul the IT Act, is indicative of the Union government’s recognition of this paradigm shift in the Internet ecosystem.
- The Bill aims to catalyse the country’s digital ambitions and govern the online ecosystem, while relying on the guiding principles of openness, user safety, and trust.
- While consistently invoking these principles over the past year, information on the timeline of the Bill has been inconsistent. The consultation with stakeholders over the Bill happened in Bengaluru on March 9.