A leaked draft of India’s new e-commerce policy wants a new e-commerce regulator that has access to source code and algorithms to mitigate biases, wants access to non-personal data for law enforcement and taxation purposes, country of origin labels and much more. The document, shared with MediaNama by two industry sources, carves out huge mandates for e-commerce companies to share non-personal data with the government and muddies waters related to data localisation, mirroring and storage even further.
The policy, despite talking about an e-commerce regulator does not specify if it will be a new regulatory body, and if so, under which ministry. All it says is that “any non-compliance e-Commerce entity/platform will not be given approval to operate in India. Necessary mechanisms may be put in place by Ministry of Electronics and Information Technology (MeitY) and the other government departments concerned [sic]” (§12.2).
It acknowledges law and order, revenue base erosion, privacy, anti-competitive behaviour, consumer protection, national security, counterfeit products, piracy, copyright infringement, etc. as issues that the need to be addressed.
This draft, from the Department for Promotion of Industry and Internal Trade (DPIIT), comes more than a year after it released the first draft of India’s National E-Commerce Policy. The Economic Times had first reported this, and Financial Express and Bloomberg have reported on similar aspects of the policy. MediaNama reached out to DPIIT repeatedly on Friday and Saturday to authenticate the document, but haven’t heard from them yet. We will update the story once they respond.
Here is a summary of the policy (our comments have been italicised):
E-commerce, or electronic commerce, or digital economy (used interchangeably in the policy) will “include buying, selling, marketing, distribution or providing access to (1) goods, including digital products, or (ii) services; through any electronic network for a price”. The draft acknowledges that there is “no universally accepted definition of e-commerce”.
E-commerce entities include, but are not limited to, B2C/B2B e-commerce marketplaces, internet-based consumer facing content platforms, app-based e-commerce, IoT/connected device-based services, and a hybrid combination of any of the above. This means that apart from Amazon and IndiaMart, companies and products like Amazon Prime Video, Netflix, and Alexa-based services will be considered e-commerce entities.
- If social media platforms, search engines, or platforms that give free services earn revenues through advertisements or “sale, lease or otherwise allow[ing] use of information relating to visitors collected during such service”, they will also be considered e-commerce entities. That means Facebook and Google would be e-commerce entities.
E-commerce data is any data arising out of e-commerce.
Consumer includes a person whose personal information is collected or harvested by an e-commerce entity.
What will the new legislation cover?
The new e-commerce legislation will cover all e-commerce-related issues that cannot be/are not being addressed by existing regulators or government bodies. As per the draft, the policy would be equally applicable to entities with foreign and domestic investments. It may ask e-commerce companies for “any information” that is “appropriate or necessary for compliance”.
Regulation of data
- Personal data: “Treatment of personal data emanating from e-Commerce will abide by relevant regulations as and when such regulations are adopted.”
- Non-personal data: “Treatment of non-personal data will be addressed by the regulatory framework emanating from the Non-Personal Data Committee, and will adhere to the norms that will be formulated for processing of Non-Personal data.”
Importance of data
The policy calls data “a national resource” that e-commerce entities use to build their data. It is, as per the document, as important as “intellectual capital (intellectual property) or industrial capital (funds)”.
Data can be leveraged for market dominance: The policy recognises that greater access to data means more potential for an entity to leverage “network effects” for success.
Duties of e-commerce companies
- Register as a business entity in India as the importer on record or as the entity through which sales are transacted if entities have a certain turnover (which includes digital services/downloads) (§12.3).
- Easy access to data for government: Store information about their activities in India in such a way that they can be given to the government without delay (§4.3, §11.3).
- Comply with all requests for information made by the government and within the time period specified by the (as yet unspecified) appropriate authority (§4.3).
- Communicate partnerships to consumers: Prominently communicate to the consumer any special relationship that may exist between an e-commerce platform and any other player (§6.5).
- E-commerce platforms can prioritise advertised products if they are prominently labelled as such (§6.6).
- Notify users about use of non-personal data: Notify users about the collection, storage and usage of non-personal data at the time of collection. If the purpose of collection changes in future, disclose it to the consumer again (§6.7). This will be legislated via the legislation on non-personal data.
- Joint and several liability: Liability of counterfeit products fulfilled by the e-commerce entity will be jointly and severely of the e-commerce entity and the seller.
- Resolution mechanism to deal with issues related to quality of goods and services. This means that all e-commerce entities have to display phone number and email address for consumer grievance, along with details of the sellers including their phone number, customer complaint number email address, physical address, etc. Consumer complaints need to be acknowledged with clear timelines for their disposal specified on the website/app (§6.9 and §6.11).
- Country of origin and value addition done in India need to be specified for imported goods and good exported from India via e-commerce entities.
- Undertaking from the seller about the genuineness of their products and this undertaking must be accessible to consumers (§13.1.2).
- Allow trademark owners to register themselves with e-commerce platforms, and facility to be put in place by platforms (§13.1.3). For luxury goods, cosmetic or goods with impact on health, platforms will need to seek the trademark owner’s authorisation before listing the product.
- Removal of counterfeit goods’ listings if the seller can’t prove that the product is genuine. The platform will have to notify the trademark owner of receiving a complaint about fake product within 48 hours of receiving the complaint.
- Creation of a list of “Rogue e-commerce entities” by industry stakeholders. These entities will be the ones who predominantly host pirated content, and after verification, these will be included in the “Infringing E-Commerce Entities” list.
- ISPs will remove or disable access to such sites within prescribed timelines.
- Payment gateways will not permit payments to or from such entities.
- Search engines and app stores will not list them in their search results.
- Advertisers will not host an ads on these websites.
- Voluntary measures to prevent online dissemination of pirated content.
- Remove/disable access to copyright violating content: If a copyright owner notifies an e-commerce platform that it is making copyrighted content available without permission, the platform will expeditiously remove or disable access to such content.
- Greater focus on adopting open source software to reduce software piracy.
Government access to data
Unhindered government access to commercially viable information: Any e-commerce regulation needs “to enable the government to have speedy access to data flowing on e-Commerce platforms that operate in the country” for issues related to security, law and order, law enforcement, taxation and safety of individuals. The government will not be required to pay for access to such data (§3.2).
All requests for information made by law enforcement agencies will have to complied with within at most 72 hours (§11.3).
Under §3.4, the policy also states that the government can ask all e-commerce sites and apps to provide “access to commercially viable/useful information” for the development of any industry, e-commerce, consumer protection, national security, and law enforcement (including taxation and other extant laws).
These are reminiscent of Sections 35 and 91(2) in the Personal Data Protection Bill, 2019 that allow the central government to exempt its agencies from the Bill for security, public order, law enforcement, etc. and seek to allow the central government to solicit anonymised personal data or non-personal data from any data fiduciary or processor for “better targeting of delivery of services or formulation of evidence-based policies by the Central Government”, respectively. These two particular clauses have already received significant pushback from industry bodies and civil society. The draft e-commerce policy in fact expands the grounds on which the government can solicit data, personal and non-personal, from e-commerce companies in particular.
Government access to source code and algorithms to prevent bias: The government might be able to seek disclosure of source code and algorithms for e-commerce “to ensure that there are no biases used and they there are no discrimination due to digitally induced biases [sic]” (§11.5). As per the policy, this is “especially true” when AI is used in e-commerce where “it is important to have explainable AI”.
Government can bar a company for security reasons: The legislation will allow the government to “review, investigate and take action” when it feels that the entry of a player in the Indian market, or certain e-commerce activities lead to a security risk (§11.6).
Cross-border data flows
Clause 3.3: “Creating high value digital products require access to data. Without having access to the significant amount of data that would be generated within India, the possibility of Indian business entities creating high value digital products becomes bleak. Domestic technology companies would be merely processing outsourced data. In addition, many future jobs such as data analytics are dependent on availability of data. However, at this juncture, there is no legal framework that would permit the government to safeguard domestic data from moving out through cross-border data flows.”
However, this clause assumes that if cross-border data flows are stemmed so that data collected within India does not go outside the territory of India, it will be enough to allow companies access to data for processing purposes. But is it not reasonable to expect that other countries will also reciprocate by not allowing their data to be processed within India or by Indian companies, thereby causing more harm?
Similarly, to safeguard national security, an unspecified “appropriate authority” can restrict cross-border flow of “potentially commercial data pertaining to defence, medical records, biological records, cartographic data, as well as genome mapping, without authorization” (§3.5). Other areas of “significant concerns” will be identified by the authority concerned. Under §11.2, the legislation will empower the concerned regulator/department “to identify information which shall be restricted for harvesting, storing, use, transfer, assignment, processing, and analysis or shall be harvested, stored, used, transferred, assigned, processed and analysed subject to certain conditions”.
It is not clear who the appropriate authority is over here. Health data, genetic data and biometric data are sensitive personal data under the Personal Data Protection Bill, 2019, but cartographic data has no special status. Under Sections 15 and 33 of the Bill, the central government would classify more categories of data as either sensitive or critical personal data, respectively. Does this mean a new regulatory authority, apart from the Data Protection Authority under the PDP Bill, would do such classification for e-commerce? It is also not clear who will authorise the cross-border data flows of commercial data in the case of e-commerce. Under Sections 33 and 34 of the PDP Bill, such decisions would fall to either the DPA or the central government.
Government to define categories of e-commerce that require mirroring or localisation: This process will happen in consultation with “relevant” stakeholders. This is in addition to such requirement under the Information Technology Act, 2000, “as well as any future legislation on personal and non-personal data governance” (§3.5). The government will also have the right to mandate localisation of Indians’ data (§11.4).
It remains to be seen if the DPA, meant to be established under the PDP Bill, 2019, would be a part of such discussion.
Audits of companies storing/mirroring data abroad: When companies store/mirror permitted categories of data abroad, they would have to ensure adequate safeguards at the data storage location through a “comprehensive periodic audit” that will be conducted by an Indian entity (owned and controlled by residents Indians). Such companies will have to furnish a certificate of adequacy and comprehensive report to the “appropriate authority”.
It is not clear who this appropriate authority will be. Under the PDP Bill, when such data audits are conducted by the significant data fiduciaries, these data audits will be carried out by data auditors assigned by the DPA.
Through the draft policy, there is recognition that certain e-commerce entities have assumed dominant position in the Indian market and thus need to be curbed.
Clause 7.1: “By the nature of e-Commerce activity, there is a tendency for one or two strong companies to emerge as leaders and exercise control over the big part of information repository. This leads to emergence of monopolistic tendencies and subversion of competition.10 The greater benefits of e-Commerce can be reaped only when the field remains competitive and barriers to new entrants are minimized.”
As a result, the draft policy wants:
- Competition preserving regulations/rules required: Regulator/concerned empowered ministry will come out with regulations/guidelines/rules so that early entrants in the market don’t have unfair advantage. (§7.3)
- Exclusive partnerships mean liability for e-commerce intermediary: When e-commerce platforms enter exclusive content relations, they have greater control over the content/goods provided and hence must assume shared liability. Such partnerships also need to be disclosed over the platform so that both consumers and law enforcement are aware of them (§7.4). New insurance offerings could be offered to cover liability of e-commerce entities under §4.5 but it isn’t clear if the liability mentioned under §7.4 is included.
- Un-distorted search results: E-commerce platforms to provide all options of products and services to consumers and sorting features that don’t “distort” results for any commercial agreement. If there is any special relationship between a platform and any other player, that will have to be prominently communicated to the consumer (§6.5).
- Mechanism to weed out fraudulent reviews: Marketplaces to develop mechanisms to prevent fraudulent reviews and ratings by sellers and their affiliates (§6.12).
Need to set up data centres in India
The policy will aim to establish India as a hub of data centres and server farms through tax breaks, low cost of power and space, quality and nature of power and fibre capacity (§3.7, §3.8) so that computing services and data storage services can be identified as key export for India.
Penalties on e-commerce companies
If e-commerce companies doesn’t deliver information in time, violates directive and orders or causes injury to consumer, it will be penalised. The new legislation will include the costs and penalties (§4.4).
Minors’ rights will be protected through “legislative intervention” as currently, only users who are above 18 years can enter into valid contracts under the Indian Contract Act, 1872.
Transactions for all e-commerce entities, including foreign ones that create token to pay service providers, must go through regulated channels such as the Liberalized Remittance Scheme (LRS), prepaid wallets or RBI-authorised online payment gateways (§12.4).
Promotion of MSMEs via e-commerce
To promote cross-border trade for MSMEs, that, as per the policy, could increase CBT revenue in B2C category by 4 times (if 2.5 lakh MSMEs move into cross-border trade in the next four years). To do that, the government will:
- Streamline logistics for e-commerce and strengthen India post, along with increasing the number of foreign post offices.
- Reduce administrative requirements and costs
- Establish dedicated E-Commerce Export Promotion Cells and create export support policies for MSMEs
- Create E-Commerce Export Zones (EEZ) with common facilities for MSME clusters in India. These will be a one-stop shop for storage (including cold storage), certification, testing labs, in-house customs clearance, and expedited processing of export incentives, GST, income tax incentives, ITC refunds and duty drawbacks.
- Provide capacity building tools to export-oriented MSMEs that aggregate cross-border shipments and deliveries, etc.
- Provide online lending, credit rating, finance and transportation support to SMEs through private and public sector (banks).
Note that in the draft policy, clauses 9.1 to 9.5, under “Strengthening e-Commerce in India” are missing. Clauses 9.6 to 9.8 are there.
Update (August 27, 2020 11:29 am): Reordered the first the paragraphs. Originally published on July 3 at 6:48 pm.
Updates: An earlier version of this story said that the policy has been released. That is not the case: the policy has not been formally released by DPIIT. The first paragraph and the headline have been edited to reflect this change. Our apologies for the error.