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Should we have sectoral regulation for safe harbor and how will it work? #NAMA

Should safe harbor provision be extended to platforms based on their operations? Should generative AI come under it too?

With inputs from Aarathi Ganesan

“There’s a certain kind of classification [of platforms] that is going to come in at the Digital India Act [DIA]-level. Subsequently, there’d be additional classifications that come in based on the regulatory risk that the regulator perceives for that sector… For example, it will be wrong to say that the Reserve Bank of India cannot prescribe additional obligations on payment services providers, because the risk posed there is higher,” said Rohit Kumar, Founding Partner of The Quantum Hub when discussing sectoral regulation under the DIA during the opening session of MarketsNama 2023.

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Nikhil Pahwa, Founder of MediaNama, was moderating the session on ‘Safe Harbor v2: What Should It Look Like?’ where speakers—Snap Inc’s Uthara Ganesh, Centre for Communication Governance’s Vasudev Devadasan, Salesforce’s Vivek Abraham, and Quantum Hub’s Rohit Kumar—discussed what’s next for India’s internet and intermediaries in light of new legislation.

During the discussion, Pahwa noted that India’s platform regulation rules, the IT Rules, 2021, already classify intermediaries into various buckets like social media intermediaries, online gaming intermediaries, etc. However, Kumar said that these loose sectoral regulations may become much more layered under the DIA.

The entire event can be viewed below:

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Safe harbor should apply to companies based on their operations: On the topic of safe harbor, Abraham suggested that the same should apply to the context of the company’s operations rather than the entity itself. He argued that even within the same service or platform, there may be instances where you have differences in how much control or visibility you have over the content.

“We must recognise today that a lot of digital regulation has been ‘outsourced to intermediaries’. They’re having to make value judgment or legal calls on where a [piece of] content is legal or not. I can tell you, that’s the most harrowing situation in a company when you don’t know how to decide,” said Abraham.

IT Act should be amended to protect technologically assisted content moderation: Devadasan said, “If we are going to amend Section 79 [of the IT Act 2000, India’s safe harbour clause] then we need to clarify in the statute itself that it protects both voluntary content moderation [by platforms] and [technologically] recommended assistance.”

How should safe harbour apply to Generative AI? Ganesh raised the question of Generative AI and its functioning. “A user or third party inputs information onto the generative AI platform and a response is generated. I have read arguments that state that the current iteration of generative AI is quite analogous to a search engine result. That’s because the output generated by the AI is a summary of third-party sources. There’s been case law in the United States where Courts held that ‘Snippets’ generated during Google searches aren’t creating new information, they’re simply summarising search result without changing the underlying meaning of whatever’s on the page. [The Courts held that] They should, in fact, continue to get safe harbour [protection],” she said.

When faced with the point that Generative AI can generate new information as well, Ganesh said, “The real test here is whether the algorithm is taking an independent, unprompted decision and then creating a technology. To my best knowledge, current generative AI technologies don’t actually offer that [service] at this point in time.”

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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 the shaping and strengthening of rights in the digital space. I cover cybersecurity, platform regulation, gig worker economy. In my free time, I'm either binge-watching an anime or off on a hike.

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