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Liability through negligence
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Liability as an exemption to safe harbour
Do We Really Need an App for That? Examining the Utility and Privacy Implications of India’s Digital Vaccine Certificates
We examine the purported benefits of digital vaccine certificates over regular paper-based ones and analyse the privacy implications of their use.
Finding Needles in Haystacks - Discussing the Role of Automated Filtering in the New Indian Intermediary Liability Rules
On the 25th of February this year The Government of India notified the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021. The new Rules broaden the scope of which entities can be considered as intermediaries to now include curated-content platforms (Netflix) as well as digital news publications. This blogpost analyzes the rule on automated filtering, in the context of the growing use of automated content moderation.
Comments on proposed amendments to the Consumer Protection (E-Commerce) Rules, 2020
The Consumer Protection (E-commerce) Rules, 2020 were first introduced in an attempt to ensure that consumers were granted adequate protections and to prevent the adoption of unfair trade practices by E-commerce entities. The amendments have proposed several rules which will protect the consumer with a restriction on misleading advertisements and appointment of grievance officers based in India. However, while on this path, the proposed rules have created hurdles in the operations of e-commerce, reducing the ease of business and increasing the costs of operations especially for smaller players; which could eventually pass on to the consumers.
In our submission to the Ministry of Consumer Affairs, we focussed our analysis on eight points: Definitions and Registration, Compliance, Data Protection and Surveillance, Flash Sales, Unfair Trade Practices, Jurisdictional Issues with Competition Law, Compliance with International Trade Law and Liabilities of Marketplace E-commerce Entities.
A snapshot of our recommendations and analysis is listed out below. To read our full submission, please click here.
Definitions and Registrations
The registration of entities with the DPIIT must be made as smooth as possible especially considering the wide definition of E-commerce entities in the rules, which may include smaller businesses as well. In particular, we suggested doing away with physical office visits.
Compliance
As a general observation, compliance obligations should be differentiated based on the size of the entity and the volume of transactions rather than adopting a ‘one size fits all’ approach which may harm smaller businesses, especially those that are just starting up. Before these rules come into force, further consultations with small and medium-sized business enterprises would be vital in ensuring that the regulation is in line with their needs and does not hamper their growth. Excessive compliance requirements may end up playing into the hands of the largest players as they would have larger financial coffers and institutional mechanisms to comply with these obligations.
There is some confusion in the law as to whether the Chief Compliance officer mentioned in the amended rules is the same as the “nodal person of contact or an alternate senior designated functionary who is resident of India” under Rule 5(1).
The safe harbour should therefore refer to due diligence by the CCO and not the e-commerce entity itself. The requirement for the compliance officer to be an Indian citizen who is a resident and a senior officer or managerial employee may place an undue burden on small E-commerce players not located in India.
Data Protection and Surveillance
In the absence of a Personal Data protection bill these rules do not adequately protect consumers’ personal data and reduce the powers given to the Central Government to access data or conduct surveillance
Flash Sales
Conventional flash sales should be defined. Clear distinction must be made between conventional flash sales and fraudulent flash sales. The definition should not be limited to interception of business “using technological means”, which limits the scope of the fraudulent flash sales. Further parameters must be provided for when a flash sale will be considered a fraudulent flash sale.
Unfair Trade Practices
The rules place restrictions on marketplace E-commerce entities from selling their own goods or services or from listing related enterprises as sellers on their platforms. No such restriction applies to brick and mortar stores, and this blanket ban must be rethought.
Jurisdictional Issues with Competition Law
This rule brings the issue of ‘abuse of dominant power’ under the fora of the Consumer Protection Authority or the Consumer Disputes Redressal Commissions. Overlapping jurisdiction of this nature could introduce regulatory delays into the dispute resolution process and can be a source of tension for the parties and regulatory authorities. The intention behind importing a competition law concept such as “abuse of dominant position” in the consumer protection regulations may be understandable, such a step might be effective in jurisdictions which have a common regulatory authority for both competition law as well as consumer protection issues, such as Australia, Finland, Ireland, Netherlands. However, in a country such as India which has completely separate regulatory mechanisms for competition and consumer law issues, such a provision may lead to logistical difficulties.
Compliance with International Trade Law
A robust framework on ranking with transparent disclosure of parameters for the same would also go a long way towards addressing concerns with discrimination and national treatment under WTO law. Further, the obligation to provide domestic alternatives should be clarified and amended to ensure that it does not cause uncertainty and open India up to a national treatment challenge at the WTO.
Liabilities of Marketplace E-commerce Entities
Fallback liability is an essential component of consumers’ protection in the E-commerce space. However, as currently envisioned there is a lack of clarity surrounding the extent to which fallback liability is applicable on E-commerce entities as well as exemptions to this liability. We have recommended alternate approaches adopted in other jurisdictions, which include
Standing Committee's recommendations are at odds with Access to Knowledge
The Indian Parliamentary Committee's report weighs on several aspects of the Indian IPR system and issues of protection and enforcement. This blog post summarily notes the observations and recommendations of the Committee on the Copyright Act, 1957 which stand to impact access to knowledge. The primary issue dealt with was the claim that copyright exceptions were affecting the publishing industry and authors. The recommendations include narrowing of copyright exceptions, barring digital storage and copying, promotion of libraries, and adopting the Berne Convention as the benchmark on limitations and exceptions.
Health IDs: Voluntary or Mandatory?
On August 15, 2020, the prime minister launched the National Digital Health Mission (NDHM) with the objective of improving and streamlining the Indian healthcare system. In December 2020, the Central Government, notified the National Digital Health Mission: Health Data Management Policy (Health Data Policy) seeking to create a digital health ecosystem under the NDHM. A core pillar of the Health Data Policy is to create a unique health identity (UHID) for every Indian citizen.
The Ministry And The Trace: Subverting End-To-End Encryption
A legal and technical analysis of the 'traceability' rule and its impact on messaging privacy.
WIPO SCCR 41: Notes from Day 3 and Day 4
Day 3 and 4 saw the presentation of four studies conducted by external experts on music markets in various regions in the world and one study on rights of stage directors of theatrical productions. Day 4 saw member states sharing their positions on a proposal for creation of two rights 1) rights of stage directors of stage productions and 2) public lending right. The Chair also presented the draft summary of the session upon its conclusion, on Day 4. This blog post shares the specific text under the broadcasting and limitations and exceptions agenda items, relevant from an access to knowledge perspective.
WIPO SCCR 41: Notes from Day 2
Member states delivered opening statements and deliberated on the scope, direction, and progress of work on the limitations and exceptions agenda. This blog post summarises positions and contentions around: 1) Information Session on impact COVID 2) Creating a binding limitations and exceptions international instrument 3) Work Plan under the L&E agenda 4) Conducting regional consultations as per the report on regional seminars and international conference on limitations and exceptions.
State of Consumer Digital Security in India
This report attempts to identify the existing state of digital safety in India, with a mapping of digital threats, which will aid stakeholders in identifying and addressing digital security problems in the country. This project was funded by the Asia Foundation.
Comments on the Cinematograph (Amendment) Bill, 2021
In this submission, we examine the constitutionality and legality of the Cinematograph (Amendment) Bill, 2021, which was released by the Ministry of Information and Broadcasting.
Right to Exclusion, Government Spaces, and Speech
The conclusion of the litigation surrounding Trump blocking its critiques on Twitter brings to forefront two less-discussed aspects of intermediary liability: a) if social media platforms could be compelled to ‘carry’ speech under any established legal principles, thereby limiting their right to exclude users or speech, and b) whether users have a constitutional right to access social media spaces of elected officials. This essay analyzes these issues under the American law, as well as draws parallel for India, in light of the ongoing litigation around the suspension of advocate Sanjay Hegde’s Twitter account.
At the Heart of Crypto Investing, There is Tether. But Will its Promise Pan Out?
The $18.5 million fine levied by the New York attorney general’s office earlier this year to settle a legal dispute, raises more questions than answers.
Submission to the Facebook Oversight Board in Case 2021-008-FB-FBR: Brazil, Health Misinformation and Lockdowns
In this note, we answer questions set out by the Board, pursuant to case 2021-008-FB-FBR, which concerned a post made by a Brazilian sub-national health official, and raised questions on health misinformation and enforcement of Facebook's community standards.
WIPO SCCR 41: Statement by CIS on Limitations and Exceptions Agenda Item
Anubha Sinha delivered a statement on behalf of CIS, on day 2 of the 41st WIPO SCCR session, on the limitations and exceptions agenda item.
Platforms, Power, and Politics: Perspectives from Domestic and Care Work in India
CIS has been undertaking a two-year project studying the entry of digital platforms in the domestic and care work in India, supported by the Association for Progressive Communications as part of the Feminist Internet Research Network. Implemented through 2019-21, the objective of the project is to use a feminist lens to critique platform modalities and orient platformisation dynamics in radically different, worker-first ways. Ambika Tandon and Aayush Rathi led the research team at CIS. The Domestic Workers’ Rights Union is a partner in the implementation of the project, as co-researchers. Geeta Menon, head of DWRU, was an advisor on the project, and the research team consisted of Parijatha G.P., Radha Keerthana, Zeenathunnisa, and Sumathi, who are office holders in the union and are responsible for organising workers and addressing their concerns.
IFAT and ITF - Protecting Workers in the Digital Platform Economy: Investigating Ola and Uber Drivers’ Occupational Health and Safety
Between July to November 2019, Indian Federation of App-based Transport Workers (IFAT) and International Transport Workers’ Federation (ITF), New Delhi office, conducted 2,128 surveys across 6 major cities: Bengaluru, Chennai, Delhi NCR, Hyderabad, Jaipur, and Lucknow, to determine the occupational health and safety of app-based transport workers. CIS is proud to publish the study report and the press release. Akash Sheshadri, Ambika Tandon, and Aayush Rathi of CIS supported post-production of this report.
On the legality and constitutionality of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021
This note examines the legality and constitutionality of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021. The analysis is consistent with previous work carried out by CIS on issues of intermediary liability and freedom of expression.
A Comparative Analysis of Cryptocurrency Reporting in Financial Statements
The Ministry of Corporate Affairs (MCA) on March 24, 2021, came out with a notification inter alia mandating disclosures of cryptocurrency holdings by companies in their balance sheets. These changes have been effectuated by making requisite amendments to Schedule III of the Companies Act, 2013. The notification specified that companies are now required to report the profit or loss accrued due to trade or investment in any type of cryptocurrency or virtual currency, the amount of cryptocurrency that the company holds on the reporting date, and the deposits or advances from any person that have been made for the purposes of trading or investing in cryptocurrencies or virtual currencies.
The decision on new disclosure requirements comes amidst parliamentary discussions on cryptocurrency and speculations of another attempt at prohibition. Meanwhile, this step has been welcomed by the cryptocurrency industry in India as it signals towards a more positive approach being taken by the government with regards to corporate cryptocurrency transactions in India. Moreover, while it opens up new possibilities of scrutiny of such transactions, this measure will also be beneficial in identifying key policy gaps in cryptocurrency regulation in India when we look at corresponding requirements in foreign jurisdictions.
In this Issue Brief, the policy landscape in the United States of America (USA), United Kingdom (UK), and Japan is discussed and particular emphasis is placed upon definition, accounting practices, and taxation, with respect to cryptocurrencies. It is thus identified that such jurisdictions have taken concrete steps in this regard by providing clear guidance (such as through HMRC’s Cryptoassets Manual and ASBJ’s advisory notification on accounting for cryptocurrencies).
Then, the regulations in India are looked into comprehensively and specific policy recommendations are made, as it is ascertained that no clear steps have been taken in the aspects that have been mentioned above. Although the March MCA Notification is a positive step on corporate cryptocurrency transactions, the following steps are needed further: firstly, a clear and comprehensive definition of cryptocurrency and cryptoassets must be laid down, preferably through a central legislation; secondly, a separate category for cryptocurrencies under the Indian Accounting Standards (Ind AS) should be created; and thirdly, complete guidance on applicable taxes on cryptocurrency transactions, by individuals and corporates, must be provided.
It is thus concluded that while the government is willing to engage with various stakeholders, with positive intent, comprehensive and definitive steps are the need of the hour. This is essential to safeguard the large number of cryptocurrency investors in India, and to quell the uncertainty that is created by speculative measures such as banks declining services for cryptocurrency transactions.
The full issue brief can be read here
A Comparative Study of Article Creation Campaigns on Wikipedia - Part II
This is a short report on a comparative analysis of two prominent Wikimedia initiatives, Wikipedia Asian Month and Project Tiger, to understand prevailing challenges and opportunities, and strategies to address the same. The report has been authored by Nitesh Gill with inputs from Suswetha Kolluru, and editorial oversight and support by Puthiya Purayil Sneha. This is part of a series of short-term studies undertaken by the CIS-A2K team in 2019–2020.
Atmanirbhar Bharat Meets Digital India: An Evaluation of COVID-19 Relief for Migrants
With the onset of the national lockdown on 24th March 2020 in response to the outbreak of COVID-19, the fate of millions of migrant workers was left uncertain. In addition, lack of enumeration and registration of migrant workers became a major obstacle for all State Governments and the Central Government to channelize relief and welfare measures.
