The first edition of MediaNama’s MarketsNama conference was held on May 19, 2023, focusing on key themes related to regulation of digital markets, including online marketplaces, aggregators, platforms and other intermediaries, like social media platforms, e-commerce marketplaces, app stores, cloud services, and more, both from the perspective of speech and business regulation.
In particular, we focused on what the Digital India Act needs to contain, in order for it to be an improvement on India’s IT Act. Rajeev Chandrasekhar, India’s Minister of State for Electronics & Information Technology, has highlighted the need for “trust and accountability” from platforms, and has asked an important and provocative question: Do we really need safe harbor?
Our objective was to identify:
● How will safe harbor protections change with the Digital India Act?
● Role of sectoral regulation and regulatory overlap
● Regulating marketplaces (e-commerce and app stores) for dominance and platform liability
● Regulation of cloud services and ISPs
● Algorithmic accountability across digital platforms and services
● Regulation of speech and content online
● Addressing cybercrime and cybersecurity concerns
● Verification of users and market participants
Download a copy of the event report
Executive Summary
The need for Safe Harbor, which is the principle that protects platforms from liability for third party content, was emphasised by all speakers and participants at MarketsNama. At the same time, it was felt that there is a need to ensure that obligations placed on intermediaries, such as transparency reports, the need for a Nodal Officer in India, distinguishing promoted content and other “positive duties” need to be separated from Safe
Harbor considerations.
In case of marketplaces, discussants said safe harbor is necessary to protect start-ups and small-scale companies. Platforms do not have the means to control the content posted by users all the time, and yet content restrictions for them are more stringent than those for other forms of media. It was recommended that the government retain safe harbor, work with platforms’ safety and security teams, and demand robust systems to carry out platform responsibilities. Positive obligations can ensure consumer safety and platform
accountability.
In the case of whether intermediaries should be classified differently, and hence regulated differently, there is a sense that this is already happening, and it leads to conflicts between ministries, and can hamper innovation and prevent companies from finding a product market fit as their business model evolves. At the same time, some intermediaries need domain specific regulations. It was felt that intermediaries can be classified on a risk-based approach, and the idea of active and passive intermediaries can be contextualised on a case-to-case basis, depending on the domain. Differentiating platforms on the basis of their different purposes can also be a mechanism for determining regulatory approach. Platforms can also be regulated based on their size and stage of growth.
On whether ex-ante regulations that would lead to forecasting potential problems would address the power imbalance in the ecosystem, it was felt that ex-ante regulations assume that every business is identical, and so require to be prefaced with thorough market research and evidence. Platforms should also disclose the principles on which their algorithms / recommendation systems work.
Generative AI should remain under safe harbor for now, because it is merely based on information available to it.
Section 69A makes censorship confidential, and leads to a lack of accountability. There’s a difference between trying to protect the identity of the complainant and using confidentially to avoid public accountability. Many users do not know the reason for which their content was taken down. This lack of transparency may result in the failure of the grievance redressal process. The government’s dubious use of Rule 16 of the IT Rules, 2021 can have a global impact if a foreign country follows the “principle of comity”—courts of one jurisdiction respect the laws and verdicts of another. New provisions should ensure that users/platforms, whose content is blocked, are informed about the blocking and that judicial oversight is included to reign in state power. Enforcement of changes in the law is critical: the police filed more cases under Section 66A of the IT Act after it was struck down by the Supreme Court than the 5 years that preceded the Shreya Singhal judgment.
Data flows between service providers to law enforcement agencies have become central to cybercrime investigations. However, the government tends to make overbroad requests for data that requires cross border access. This is because law enforcement agencies lack the technical assistance on the ground to get the data. As a result, companies are slapped with personal criminal liability cases.
New cybersecurity laws should work in the analytical framework devised in the Puttaswamy judgment. This means that the demand for access to data should be reasonable and from a privacy perspective. Another suggestion was to gather all information/directions scattered across FAQs, briefings, and informal meetings and incorporate it into the CERT-In rules.
Video and Coverage
MediaNama’s coverage of the discussion can be found here.
About the discussion
Speakers:
Safe Harbor v2.0: What does it look like?
- Rohit Kumar, The Quantum Hub
- Uthara Ganesh, Snap India
- Vasudev Devadasan, CCG-NLUD
- Vivek Abraham, Salesforce
Regulating Marketplaces: E-commerce and App Stores
- Abir Roy, Sarvada Legal
- Gowree Gokhale, Nishith Desai Associates
- Rajnish Wahi, Snapdeal
- Shruti Aji Murali, Axiom5 Law Chambers
Regulating Speech and Content Online
- Radhika Jhalani, SFLC.in
- Sachin Dhawan, CCG-NLUD
- Tanmay Singh, Internet Freedom Foundation
Privacy, Cybercrime and Cybersecurity
- Atul Kumar, Data Security Council of India
- Sukanya Thapliyal, CCG-NLUD
- Venkatesh Krishnamoorthy, BSA | The Software Alliance
Participation:
We saw participation from organisations such as ONDC, Meta, Google, Twitter, Omidyar Network India, Truecaller, AceVector, Gameskraft, PayU India, ShareChat, InShorts, Amazon Web Services, ADIF, COAI, IAMAI, CCAOI, Ikigai Law, Shardul Amarchand Mangaldas, DSK Legal, Nishith Desai Associates, Saraf & Partners, TechBridge, Internet Society, E Gaming Federation, Deloitte, APCO Worldwide, FTI Consulting, Gestalt Strategy Consulting, K&S Digiprotect, Koan Advisory Group, Logically, TechCrunch, The Hindu, The Ken, and more.
Support and partners:
MediaNama hosted this discussion with support from Salesforce, Google and Mozilla, and our community partners, Internet Freedom Foundation, Centre for Internet and Society and Alliance of Digital India Foundation.
