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How Can Platforms Be Classified and Regulated Under the Digital India Act? #NAMA

Experts discuss platform regulation in the Digital India Act and debate the need for differentiated safe harbour provisions.

With inputs from Vallari Sanzgiri

It becomes difficult for platforms to shapeshift into new business models if they’re strongly classified as specific intermediaries, The Quantum Hub’s Rohit Kumar noted at MediaNama’s recent MarketsNama conference. 

Kumar’s comments come after the IT Ministry’s plans to classify and regulate platforms based on the services they offer under the upcoming Digital India Act. Currently, IT laws regulate vastly different platforms under catchall rules for ‘intermediaries’. Following these broad rules provides platforms with safe harbour protections—which prevents them from being held liable for the third-party content they host. 

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Source: Ministry of Electronics and Information Technology.

“The presentation that [the junior IT Minister] Rajeev Chandrashekhar held [on the Digital India Act] listed too many kinds of categories, and I think such siloing isn’t required,” Kumar argued, while speaking on the “Safe Harbour v2: What Should It Look Like?” panel.

“It’s [also] important to recognise that not all intermediaries have the same kinds of risks,” he continued. “[So] I think it’s wrong to categorise them into the same bucket [under function-specific labels]. So, when we’re qualifying safe harbour with certain sets of obligations, the obligations that apply on any platform will have to differ based on the kinds of functions they impose … We recommend keeping a few broad categories that don’t go into too many details.” 

The government could follow a risk-based approach to platform regulation and safe harbour: “Anyone offering any service should first take a risk assessment to figure out which of these … [risk-based] categories they fall into,” said Kumar, referring to The Quantum Hub’s proposed risk-based classification of intermediaries. 

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Source: The Quantum Hub.

“Based on that risk assessment, they decide what [bracket of regulation] to comply with,” Kumar continued. “So, they’re not waiting for the government to give them a licence—they do the assessment, put out a public report, and comply with whatever they think they should be complying with. If there is a disagreement [over their self-classification], they can be asked to re-evaluate that. This allows companies sufficient room to manoeuvre while also recognising the need to differentiate between different kinds of intermediaries. For instance, it’ll be wrong for me [as a hypothetical regulator] to place a conduit service in the same category as a platform using algorithmic amplification, as the risks posed are very different.”

Does every platform equally deserve safe harbour in a post-algorithmic world?: Platforms are different because they serve different purposes—which makes thinking about differentiated safe harbour important. There are three lenses to consider with this approach, suggested Snap’s Uthara Ganesh.

“First, does each platform have actual knowledge of the platform?” Ganesh asked. “Second, does each platform have control over the underlying meaning of the unlawful content on their platforms? Third, are platforms in any way profiting from the presence and spread of unlawful information on their platforms? These are the three tests [to judging platform classification and safe harbour] that are important to ask in a world where we’re seeing all sorts of new technologies [emerging].”

Platforms can also be regulated based on their size and stage of growth: You could have a cut off for micro-business below a certain revenue or valuation, suggested the Centre for Communication Governance’s Vasudev Devadasan. “You can regulate by size,” he clarified. “Even if you take the example of a founder who doesn’t know what their business is going to be two years from now, if you’re at that stage of growth, then you shouldn’t be subject to these complicated obligations. But, if you’re a large platform that’s already having an impact on its ecosystem, then you should probably have safeguards for design, process, and systems [imposed].”

Platform obligations don’t need to be regulated through safe harbour: “Safe harbour is uniquely suited to handle things on a case-by-case basis because it works vis-a-vis one piece of unlawful content,” Devadasan added. “[But] If you want large e-commerce platforms have a system where, for example, a user should always be able to contact the seller or at least identify the seller to sue them for product deficiency, then that’s the kind of thing that can be imposed positively on all e-commerce platforms above a certain size. That’s something you don’t need to regulate through safe harbour.”

This post is released under a CC-BY-SA 4.0 license. Please feel free to republish on your site, with attribution and a link. Adaptation and rewriting, though allowed, should be true to the original.

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I'm interested in stories that explore how countries use the law to govern technology—and what this tells us about how they perceive tech and its impacts on society. To chat, for feedback, or to leave a tip: aarathi@medianama.com

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