Time to reassess what is good, what is bad, and what is ugly about India’s tech regulations

The emergence of new technologies has digitalised markets, societies and nations. Once perceived as a strength, this proliferation of technology is now also a vulnerability. It has made tech-governance more political and social, and less about the traditional modes of regulation such as permissions, standards and tariffs.

India is among the most technology adept nations, a function of its people’s comfort with IT products and services as well as its late-mover advantage. It must now engage with a spectrum of evolving needs around law and regulation. This is necessary to accelerate population-scale opportunities and address widespread risks.

Three sets of issues emerge here – understanding the nature of technology-linked risks; assessing the challenges to governance; and being imaginative in embracing new modes of regulation.

Three sets of issues emerge here – understanding the nature of technology-linked risks, assessing the challenges to governance, and being imaginative in embracing new modes of regulation.

Let us begin with the risks, which themselves are creations of enhanced democratic access. For example, in roughly two decades India has added over a billion mobile phone subscribers, with over 50 per cent of them now using smartphones. This is transformational and unprecedented.

Improved access is credited with enabling financial inclusion, efficiency in education and healthcare, and fostering local e-commerce as well as global trade. However, a large user base is also a double-edged sword. As a result, corrective interventions need to be nimble and at digital velocity and population scale. Legacy regulation is simply ineffective.

This is best illustrated by problems plaguing social media platforms. A 2021 study found a high rate of social media misinformation in India, and attributed this in part to the country’s higher Internet penetration rate, driven by smart phones. Between June-July 2021 alone, Facebook received 1,504 user complaints in India – with a significant proportion of these related to bullying, harassment or sexually inappropriate content. Concerns are also emerging across other digital ecosystems, such as online gambling and crypto-assets. The mobile phone is a communication device, a crime scene and also an unsafe personal space.

Several state-level laws regulate or entirely prohibit betting and gambling. However, research suggests India is among the top five countries in terms of income potential from online gambling, and that the domestic online casino market may grow by 22 per cent each year. People from several states, such as Maharashtra, Telangana and Karnataka, are among the most frequent visitors to online gambling websites. The market for illegal betting and gambling in India is highly lucrative, with some estimating its value at USD 150 billion.

Offshore gambling websites often channel black money, engage in illicit transactions and launder wealth through financial intermediaries. Their operators are invariably based outside India, which makes it difficult to enforce the writ of the state. Recent investigations by bodies like the Enforcement Directorate have revealed instances of locals being hired to open bank accounts and trade through various online wallets, revealing gaps in due diligence mechanisms.

For the digital economy to flourish, it is important to evolve approaches that help resolve systemic and structural risks. It is time to reassess what is good, what is bad and what is ugly in this new digital landscape. Online gaming and online gambling must not be conflated. Similarly blockchain and sensible DeFi must not be clubbed with predatory crypto-gaming. After all, if we don’t embrace disruptive technology markets through sensible regulation, others will. A failure to capitalise may see India lose key avenues for economic growth and investment. India risk environment will then be shaped by external jurisdictions, some inimical to the country.

For instance, there are approximately 15 million crypto-asset investors in India, with total holdings of INR 400 billion. However, the regulatory and policy uncertainty has compelled crypto-asset entrepreneurs and exchanges to look to operate in more favourable markets. Exchanges such as Cryptokart, Koinex and ZebPay have exited the Indian market. ZebPay, for instance, is now headquartered in Singapore. In late 2021, many crypto-asset founders in India were considering moving their businesses to either the UAE or Singapore.

What we need today is new thinking and a new imagination of the digital world as not merely a virtual extension of the real, but an entirely different paradigm.

By banning cryptocurrencies altogether, nations such as China have missed the bus. India must leverage its position as the world’s third-fastest growing technology hub and seize the opportunity created by Beijing’s command and control ethos that is antithetical to innovation. India can and should become a global norms shaper in tech.

Tech regulation at population scale is akin to writing a new constitution for a digital nation. What we need today is new thinking and a new imagination of the digital world as not merely a virtual extension of the real, but an entirely different paradigm. There needs to be a clear-eyed understanding of what is legal, what is illegal and what may be illegal and yet requires regulations to serve and protect users and citizens.

To use a real-world analogy, since the 1990s, many countries including India have consistently distributed condoms and undertook safety campaigns among sex-workers without legalising prostitution or made available safe syringes to drug users without legalising the act. For governments and regulators, the role is no longer one of a gatekeeper that has the ability to prevent or permit activities online; it is becoming more of an ecosystem shaper and reducer of public bads.

By taxing cryptocurrency assets but not recognising these as legal tender, India has shown some welcome flexibility. It would do well to retain this nimbleness and become a co-curator of relatively safe tech platforms, services and products of the future that respond to Indian jurisdiction rather that off-shore the production of risks along with the rewards.

China, Digital India, Media, Research

The shaky ground that digital democracies walk on

A decade ago, the Arab Spring levelled the divide — even if briefly — between the Palace and the Street. Powered by social media, the age of digital democracy was upon us. Technology has since become the mainstay of civic activism. Not only are more voices heard, but elected governments are also more responsive to them. And indeed, in many countries, more people are participating in politics than ever before. From attitudes and approaches of platforms and governments to the proliferation of intrusive technologies that invade personal spaces, the gains of the past decade are nevertheless being undermined. The past year or so has made us acutely aware of the weaknesses and threats to digital democracies. Some of these need a coordinated global response.

First, the very platforms that have fuelled calls for accountability often see themselves as above scrutiny, bound not by democratic norms but by bottom lines. The fact is acquisition metrics and market valuations don’t sustain democracy. The contradiction between short-term returns on investment and the long-term health of a digital society is stark. If hate, violence, and falsehoods drive engagement, and, therefore, profits for companies and platforms, our societies are indeed on shaky ground.

To make technology serve democracy, regulation will have to be completely rethought. Big Tech boardrooms must be held to standards of responsible behaviour that match their power to influence and persuade. Moreover, any accountability framework must be global. The global south lives with and depends on technology platforms designed in the north. These platforms have been visibly taken to task by lawmakers and institutions in the countries of their design. Does the larger cohort of users in the developing and emerging democratic world have recourse to such action? And is this denial tenable and fair?

Most democratic constitutions around the world, while protecting expression, do so with safeguards that are meant to secure peace and co-existence in societies that have histories longer and more storied than America’s.

Second, much of Big Tech is designed and anchored in the United States (US). Understandably, it pushes American — or perhaps Californian — free speech absolutism. This is in conflict with laws in most democracies — including in the US after January 6. Most democratic constitutions around the world, while protecting expression, do so with safeguards that are meant to secure peace and co-existence in societies that have histories longer and more storied than America’s.

This American approach to freedom of expression imposed on other democratic societies, at velocities facilitated by technology, is a formula for serious disorder. If American Big Tech wishes to emerge as Global Tech, it must adhere to global democratic norms. Its normative culture must assimilate and reconcile, not prescribe and mandate. In the absence of such an understanding, a clash is but inevitable. It must be emphasised that the fault line would be social norms, not the benefits of technology.

If global democracy and global tech are to coexist, the global south must sit at the high table when regulations are designed and as ethics are embedded in algorithms. Today, the global south’s participation in policy and design decisions that shape our tech future is like the map of vaccinations in our pandemic world — significantly underrepresented in democratic Africa and Asia.

Finally, the greatest danger to the freedom our democracies enjoy is from authoritarian regimes that exploit our liberties and turn them against us. In the real world, Peng Shuai is under house arrest. But in the virtual world, she is presented as being free and happy. Wolf warriors have given a whole new meaning to the phrase “virtual reality”. Recently, an Indian speaker at a transportation conference in China found her microphone turned off because she questioned the Belt and Road Initiative. We are in an unprecedented political landscape where authoritarians weaponise our debates even as we are silenced in theirs. Would any country allow another to open an embassy if it did not have reciprocal rights in the other capital?

The global south’s participation in policy and design decisions that shape our tech future is like the map of vaccinations in our pandemic world — significantly underrepresented in democratic Africa and Asia.

We are living in that perverse reality already. China’s media and government handles conduct aggressive diplomacy in our digital public sphere while we are denied the right to do so in theirs. Beijing and other authoritarian regimes are omnipresent in our digital lives. Their handles bombard us; their chosen narratives besiege and colour the truth. How can we prevent such regimes from gaming the public sphere, and from this perversion of institutions, academia, media, and tech platforms? Their presence on our platforms represents a systemic challenge and a security risk. It must be responded to.

The alleged disruption of America’s elections in 2016 will be child’s play as compared to what may happen in 2024. That year, India, the US and the European Union Parliament will all hold elections — the first such coincidence in the age of digital democracy. We face a perfect storm of misinformation and manipulation. Confronted by wolf warriors, the rest of us can’t be lambs to the slaughter. Open societies have always stoutly defended their borders. Now, they must safeguard these new digital frontlines. At the Summit for Democracy — called by President Joe Biden and addressed by, among others Prime Minister Narendra Modi, it was apparent to all that the democratic world needs to get its house in order. Even as democracies attend to this they need to ensure that other’s don’t burn the house down.

Research, Writing

Big Tech and the State: The necessity of regulating tech giants

The scramble for gold on the Internet has transferred control of vast swathes of cyberspace to a very small and select group: Big Tech. This has made ‘significant social media intermediaries’ highly profitable ad businesses that have grown amid non-existent privacy and weak intermediary liability laws. They make the market, grow the market, and shape market rules. No ad business, or any business in history—not even Big Oil or Big Tobacco—has held so much power over consumers and the economy. This perverse power is, perhaps, the single biggest challenge that nations and peoples will have to grapple with. Accountable Tech must be India’s leitmotif in 2023 as it presides over the G-20, and a robust digital republic its sovereign mission as its turns 75 next year. This will need sensible politics, sophisticated policies, and a return to first principles.

Concentration of wealth is a competition issue and an economic policy question. Left unregulated, it brings about inequality in income and opportunity. But concentration of power when it comes to discourse—what is promoted, shared or suppressed—should be more worrying. Safe-harbour provisions in the United States along with self-regulation principles have allowed Big Tech to cherry pick what is to be acted on and what is to be ignored, effectively making it the arbiter of permissible speech. For example, anti-vaccine Twitter users have thrived during the pandemic, while, sometimes, less dangerous actors have had their posts labelled. In January, Angela Merkel, Chancellor of Germany, denounced the de-platforming of then US President Donald Trump by Twitter. “The right to freedom of opinion is of fundamental importance,” Merkel’s Chief Spokesperson, Steffen Seibert said, “Given that, the Chancellor considers it problematic that the President’s accounts have been permanently suspended.”

The issue here is not whether Merkel agreed or disagreed with Trump’s tweets. The question is—who censors him, how, and with what process and level of transparency? For the Chancellor and for many, Twitter cannot choose for itself when it seeks to be a provider of public goods, and when it is a private messenger eligible for intermediary protections. When governments around the world describe digital connectivity as a ‘utility’, information lines cannot be disrupted by religious, cultural or ideological filters. Like water, electricity and roads, significant social media will have to serve all, even those its management and owners disapprove of.

[Platforms] cannot choose for [themselves] when they seek to be a provider of public goods, and when they are a private messenger eligible for intermediary protections.

The instances when utilities (say electricity and water) are denied or disconnected are specific, rare and regulated. Even in the information age, only the state and its three pillars have this right. Global Big Tech is not part of this constitutional arrangement. There are checks and balances in place, with legal recourse available for all within the state and for external actors as well. Any alternative to this constitutional setup would be akin to legitimising foreign influence operations in domestic affairs. In an extreme, for a country that is almost perpetually in election mode, it would be tantamount to election interference. This may seem like hyperbole, but it is closer to the truth than we suspect. For instance, if an electoral candidate makes an incendiary speech on a physical stage, the Election Commission, law enforcement agencies and the judiciary act against him—not the private company that has set up the stage or the power utility that has provided an electricity connection to the mike. Is the online equivalent being honoured by Big Tech?

Regulation of Big Tech across democratic setups

Australia gets this. In February, it passed the News Media Bargaining Code. The code encourages intermediary tech firms to negotiate deals with media outlets, effectively mandating that Facebook and Google pay news firms for content. The law was passed after a protracted battle between the Australian government and social media firms. It escalated when Facebook removed content of certain Australian news agencies, several official government handles, emergency services, and civil society organisations from its platform. Prime Minister Scott Morrison held firm: “These actions will only confirm the concerns … about the behaviour of Big Tech companies who think they are bigger than governments and that the rules should not apply to them.”

Canada, too, is making moves to curtail the wealth and discourse monopoly currently enjoyed by Big Tech. Just this week, Canadian lawmakers passed Bill C-10, which seeks to regulate the kind of content media streaming services prioritise on their platforms. The Bill, which is yet to be passed by the Senate, aims to make digital streaming platforms at par with traditional broadcasting services; the latter are obligated to increase the visibility and “discoverability” of Canadian content, and to set aside part of their profits to support a fund that promotes original Canadian productions.

Across the pond from the Americas, the European Union is also actively working towards mitigating the risks posed by the monopoly of Big Tech. Margrethe Vestager, Vice President of the European Commission for A Europe Fit for the Digital Age, has stated that tech giants, “have the power to guide our political debates, and to protect—or undermine—our democracy.” In December 2020, Vestager and her office tabled the Digital Services Act (DSA), which seeks a systemic assessment of the varied social, economic and constitutional risks posed by the services provided by Big Tech.

The most decisive move yet has come from Poland, which has proposed a law to ‘limit’ the censorship tendencies of the tech giants. Soon after the deplatforming of Donald Trump by Twitter, Prime Minister Mateusz Morawiecki wrote on Facebook: “Algorithms or the owners of corporate giants should not decide which views are right and which are not. There can be no consent to censorship.” The new proposed law provides for a special mechanism for those whose content or profiles have been blocked/deleted by social media platforms, where they can complain directly to the platform, which is obligated to respond within 24 hours. After a review by a specially constituted “Freedom of Speech Council”, deleted content can be restored by order. If platforms do not comply, they can face a heavy fine of up to 50 million zloty (US $ 13.4 million).

Regulatory Frameworks in India

India, too, must take some tough calls. The vision of Digital India has advanced—from only four unicorn companies in 2014, India had 12 in just 2020 alone. Regulation must keep pace with this economic and social reality. It is absolutely critical that the Privacy and Data Protection (PDP) Bill, currently being examined by a Parliamentary Joint Committee be brought forth and enacted as law. Without the umbrella framework of the PDP bill, India’s regulation of Big Tech will be ad hoc, and may be misconstrued as a political instrument.

The vision of Digital India has advanced—from only four unicorn companies in 2014, India had 12 in just 2020 alone. Regulation must keep pace with this economic and social reality.

With respect to regulating intermediaries, the Indian government initiated a public consultation process in December 2018 and invited submissions from the public to the Ministry of Electronics and Information Technology. A spectrum of civic, industry and academic actors participated. The rules were notified in February 2021, specifying clear compliance requirements within three months. Yet, the reaction of Big Tech platforms has been to delay, stall and obfuscate compliance.

It is high time that the actions of these companies were subject to systematic and rigorous Parliamentary oversight; but for that to happen, legislation is needed. Indian law and policy are rooted in our Constitutional principles. Indian policies on digital governance are no different, but they now need the imprimatur of Parliament to truly be effective. And should there be questions and grievances regarding the scope and constitutionality of the law, the courts of India will be the ultimate judge.

The objective of regulatory frameworks is to safeguard public interest, even (or perhaps especially) if it involves eroding the bottomlines of powerful vested interests. To once again quote the EU Commission’s Magrethe Vestager (in an intervention at a technology policy panel at the Raisina Dialogue earlier this year), regulating Big Tech, “Is a job, not a popularity contest”.

Perhaps, the real limitation is one of our imagination. In our minds, Silicon Valley is forever a happy, sunshine place, led by geeky, long-haired wunderkinds in t-shirts and flip-flops. The reality is Big Tech’s instincts today are driven by a single-minded sense of territoriality and collective impatience for different governance systems. For them, their ‘code is law’ and it is universal. That is at the crux of it.

Cyber and Technology, India, international affairs, media and internet, tech and media

Just deserts? Western reportage of the second wave in India exposes deep schisms in relations with the East

Co-authored with Mr. Jaibal Naduvath

This article is a continuation of a previous article written by the authors, Revisiting Orientalism: Pandemic, politics, and the perceptions industry

In Lord Byron’s poem, Childe Harold’s Pilgrimage (1812), the protagonist Harold, contemplating the grandness of the Colosseum, imagines the condemned gladiator, dignified yet forlorn, butchered for the entertainment of a boisterous, blood lusty Roman crowd out on a holiday.

Public spectacles of suffering are integral to the discourse of power. The perverse imagery and messaging surrounding the suffering seeks to intimidate and suppress the subaltern’s agency to perpetuate ethnic dominance and social control. It pivots around an elevated moral sense of the ‘self’. In his seminal work, When Bad Things Happen to Other People, John Portmann argues that it is not unusual to derive gratification over the suffering of the ‘other’, particularly when the native feels that the suffering or humiliation of the ‘other’ is deserved. The suffering then becomes fair recompense for transgressions real and imagined, and the accompanying sense of justice and closure brings forth feelings of gratification.

India is reeling in the aftermath of the second wave of COVID-19. As death reaps rich dividends cutting across class and covenant, the country is engaged in a determined fightback. The developments have made global headlines, and, in equal measure, triggered global concern. Apocalyptic images of mass pyres and victims in their death throes, replete with tales of ineptitude, profiteering and callous attitudes, have made front page news and have become television primetime in much of the trans-Atlantic press, conforming to reductive stereotypes that have informed three centuries of relations with the Orient. The ‘self-inflicted’ suffering is then ‘fair recompense’.

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Samir Saran

Tag Archives: media and internet