The ambitious ambitions of the Union government to “Catalyse New India’s Techade” and “Vision of Digital India” are well known. A “modern digital law” is one of the many strategies envisioned to achieve these objectives. A “comprehensive legal framework” for the digital ecosystem was the government’s goal when the notion of a new digital legislation first surfaced. A “new telecom law, information technology law, and user privacy law” were to be included in this framework.
Since a while ago, the Ministry of Electronics and Information Technology (MeitY) has made clear that it intends to create a new law that accurately reflects changes in India’s digital technology ecosystem. The Information Technology (IT) Act, 2000 is the current piece of legislation in India that governs transactions and e-commerce.
Global technical realities have undergone significant change over the past 20 years, which has increased the need to reevaluate not just the legal and economic effects of digitization but also the social ones. The Union government’s awareness of this paradigm change in the Internet ecosystem is reflected in the planned Digital India Bill (DIB), which will reform the IT Act.
Since supposedly starting last year, the DIB has attracted a lot of interest and attention, most of it fueled by the media around the unofficial remarks made by Ministry officials.
These declarations declare that the Bill relies on the guiding principles of openness, user safety, and trust to catalyze the nation’s digital objectives and regulate the online environment.
Information on the Bill’s timing has been erratic, despite the year-long regular use of these principles. Even in May of last year, it was suggested that the Bill be published. But, as media reports suggested, it was still not clear when the document would be made available for public comment.
The Government finally announced that the Law would be published in December 2022 after multiple modifications and several months of delay. Even then, there was no public consultation in the months that followed.
A “public” consultation was started earlier this month after much delay. On March 9, stakeholder consultation took place in Bengaluru. However neither a draught of the Bill nor a White Paper outlining the Ministry’s early ideas have been made public.
Making assumptions based on the Ministry’s prior remarks and actions is necessary in the lack of clarity regarding the Bill’s contents.
During regulation
The Ministry has voiced concerns about how, in the last 20 years, the Internet has transformed from a “space for good” to a “space for criminalities and illegalities.”
There is no doubting that a variety of brand-new, sophisticated user harms have found a home on the Internet. Although the Ministry has provided some examples of these, it neglects to inform stakeholders of its comprehension and evaluation of these harms.
This is a cause for concern because there are deeper societal concerns at play, and if the approach is one of “regulation” at the technological layer rather than researching and understanding them first, the intricacies of those issues may be missed.
Although the Ministry has highlighted the crimes committed online, the advantages made possible by the Internet must also be acknowledged and protected. How the government intends to balance the difficult rewards versus risks versus harms is not really clear.
The Ministry has stated that it will rely on a “principles and rules-based approach,” in which the government will establish a legal framework based on particular guiding principles, then announce rules that are relevant to a given industry or topic. The Ministry predicted that the character of these regulations would be prescriptive.
The leading ad-tech platforms, app stores, and other elements are proposed to be regulated as key elements of the DIB in order to prevent market power consolidation and for gatekeeping, as well as the potential for “age-gating” through regulating addictive tech.
The Bill will also discuss “content monetization rules for platform-generated and user-generated content” and “discretionary moderation of fake news” by social media platforms.
The Ministry has previously created new classes of intermediaries by changing the IT Regulations, 2021, therefore the decision to add additional categories of intermediaries was not unexpected. Social media intermediates, prominent social media intermediaries, and online gaming intermediaries are some of these types.
Question about safe harbor
Digital media, AI, gaming, e-commerce, OTT platforms, telecom service providers, ad-tech, significant social media intermediaries, search engines, and even fact-checking portals are some of the different types of intermediaries for which separate rules may be drafted.
The Bill raises the issue of whether or not all intermediaries merit safe harbor, even as one becomes accustomed to the variety of intermediaries and the difficulties in categorizing them.
Numerous online entities will be impacted by such a significant change in the legal landscape. As long as they follow the government-mandated standards for due diligence, intermediaries that host user-generated content are granted legal immunity under Section 79 of the IT Act and are released from responsibility for the conduct of users on their platform.
The creativity and freedom on the Internet may suffer if this clause is fundamentally changed. The safe harbor clause, which is essential to protecting internet free speech, must be kept. The openness, trust, and safety for the Internet espoused by the Ministry must be upheld by both platforms and users.
Combating cybercrime
It is important to consider whether regulation, content moderation, and the imposition of penalties are the only ways to address cybercrimes, despite the fact that there is no denying the rise in cybercrimes and the complexity of harms/risks.
On a larger scale, trying to control each of these distinct harms, risks, and entities under a single framework would lead to an unsatisfying balancing act.
In other areas where sectoral regulators are also stepping up, such as e-commerce, the financial sector, market dominance and consumer protection, advertising in the education sector, etc., there is also a risk of overlap and consequently, legislative ambiguity. Even though they are very important, these issues will not be raised until later.
The ongoing consultation process needs to receive immediate attention to make sure that they add more to the process than just making headlines. The Ministry would do well to take the strategy used in Britain (Internet Safety Bill) and Europe (Digital Safety Act) as appropriate points of reference to ensure that the consultation process is transparent.
Notwithstanding the fact that these pieces of legislation have some substantial flaws, it is important to recognize their dedication to a transparent, thoughtful, and well-documented public consultation process.
For the creation of a new digital legal framework, it is also necessary to adopt the sound precedents for public consultation established under the Pre-Legislative Consultation Policy (PLCP), 2014, in India, such as provisions to send comments/submissions within a reasonable duration (no less than 30 days), make the comments publicly available, and allow for counter comments.
