“…you’ve had a situation where you move from just mere conduits like an ISP or a telecom operator to entities exerting a lot more control over the entire process. And that’s led to great consumer experiences as well, but you have that control, but you don’t necessarily have that accountability. So, for example, an e-commerce platform can change how it responds to a customer ad hoc today. There are no specific obligations to respond in a particular manner. So is there a distinction that needs to be created between active and passive players?” asked Nikhil Pahwa, Founder of MediaNama, sparking off a conversation on the manner of regulation for intermediaries during MarketsNama 2023.
Pahwa was moderating the first session of the flagship event on ‘Safe Harbor v2: What Should It Look Like?’ where speakers Snap Inc’s Uthara Ganesh, The Quantum Hub’s Rohit Kumar, Centre for Communication Governance’s Vasudev Devadasan and Salesforce’s Vivek Abraham discussed what’s next for India’s internet in terms of Section 79 and regulation.
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During the discussion, Pahwa gave the example of the Darveys vs Louboutin judgement by Justice Pratibha Singh in the Delhi High Court to illustrate how certain intermediaries exert a substantial amount of control in certain situations. In this case, Singh identified 26 instances where Darvys’ claimed it was an intermediary but still exerted control over what was sourced, where it was sourced from, how the products were promoted, packaged, delivered, etc.
Taking another example, he asked, “Can you say that if there is active content moderation that’s taking place on a speech platform… then because there is an algorithmic layer, then there’s a human layer, then they are actively involved in regulating that content: should there be a requirement for proactive monitoring? Is there a need to separate [intermediaries]? One is regulation by size, the other is regulation by activity and what you actually do? How should this play out?”
The entire event can be viewed below:
No hardline definition for active/passive intermediaries: Answering Pahwa’s question on whether there should be a separate regulation, Abraham talked about the need to assess how much control or knowledge an intermediary has had over a transaction.
“It should not be a definition that forever blesses or dams an entity. Once an active intermediary should not be always an active intermediary in every transaction that happens on their platform because in many cases they may not be aware of the transaction, they may not have control over the transaction. Likewise, a passive intermediary may have knowledge about certain transactions. They may be able to knowledge about certain content or transactions on their system, and if those are bona fide activities, then yes, they should be held liable for it,” said Abraham.
There’s no single algorithm for regulation here: Abraham also suggested that the government consider all aspects like who is liable, who is in control, what is the impact of the transactions, etc. to come up with a single regulation. Rather than a rigid approach of only considering a big company and holding them liable for a maximum penalty, he suggested that the law “take everything into the mix” and understand the nuances.
“This one algorithm fits all sort of situations have long gone and the law needs to recognize that,” said Abraham.
Regulation should consider variances of platforms: Speaking of regulation, Ganesh pointed out that each social media platform varies from the other.
“I think the regulation should absolutely internalize that there are significant variances enhanced depending on the nature of the platform, and the type of function,” said Ganesh.
No point in holding new players responsible: Kumar also pointed out that new players shouldn’t be encumbered with such compliance norms.
“[Not encumbering new players] is exactly the kind of approach that even the Digital Services Act in the European Union also takes the same kind of approach,” said Kumar.
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