Hopes and Doubts related to Telemedicine Guidelines in the context of Data Protection

Author is Vineet Gupta, Volunteer Researcher, LawforIT. He is actively involved in a research on privacy policies of different leading online medical consultation platforms. Policy paper will be soon available on the Blog.

Background

The Medical Council of India jointly with the NITI Aayog notified the Telemedicine guidelines in midst of the Coronavirus Pandemic. These guidelines can be seen as a first attempt in providing some amount of relief, in regards to legal gaps and anxieties around the practice of medicine by doctors via communication devices.

Although, historically (with the advent of technology) telemedicine has been widely performed in India, for long there has not been any type of legal mechanism for the same. From the introduction of the Communication channel by ISRO in 2001, linking Chennai’s Apollo Hospital with the Apollo Rural Hospital at Aragonda village in the Chittoor district of Andhra Pradesh[i] and to the hundreds of apps providing for online consultation today, we have come up a long way. With the technological up-gradation and boom in the telecommunication sector, it was quite common for a patient to seek recommendations from their family doctors on calls, WhatsApp messages, and even video conferencing. Realizing the potential around telemedicine and its outreach, the internet was flooded with many startups acting as intermediaries that provided a channel between patients and doctors for online medical consultation.

On one side telemedicine was gaining popularity and on the other side, there was also a certain amount of anxiety, backlash, and confusion around the practice of telemedicine. With no proper guidelines among the practice of telemedicine, the doctors were kind of hesitant in providing online/telephonic consultations. They were also pressurized by the medical associations (some of which even declared telecommunication as unethical and practice of which can lead to cancelation of license)[ii]. The patients were hesitant to get telemedicine and a little reluctant to provide their sensitive information online to unknown doctors. They were scared as for long there was no telemedicine and data protection law in place. Most importantly many people, especially the rural population were, and are unaware of the potential of telemedicine and its application in this Technological era. The introductory part of the guideline’s states that:

“In India, till now there was no legislation or guidelines on the practice of telemedicine, through video, phone, Internet-based platforms (web/chat/apps, etc). The existing provisions under the Indian Medical Council Act, 1956, the Indian Medical Council (Professional Conduct, Etiquette and Ethics Regulation 2002), Drugs & Cosmetics Act, 1940 and Rules 1945, Clinical Establishment (Registration and Regulation) Act, 2010, the Information Technology Act, 2000 and the Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules 2011 primarily govern the practice of medicine and information technology. Gaps in legislation and the uncertainty of rules pose a risk for both the doctors and their patients.[iii]”

https://www.mohfw.gov.in/pdf/Telemedicine.pdf

The case of Deep Sanjeev Pawaskar and Anr. v. The state of Maharashtra[iv] was by the high court of Bombay a doctor provided advice to ailing patient online due to lack of unavailability of routine doctor and unfortunately, the patient died. The high court held the doctor as negligent for using telemedicine to treat the emergency. This case led to widespread criticism as the patient would have died irrespective, and telemedicine had no role to play. The above case triggered the need for new legislation, and the need for remote doctors in coronavirus pandemic led to the expeditious introduction of these much-awaited guidelines. These guidelines have opened a door to the future of telemedicine in India. While a lot has been discussed upon the salient features of this act, I will be strictly adhering to the examination the guidelines concerning personal data protection concerns.

Locating privacy under Telemedicine Guidelines

In the course of doctor-patient interaction, a significant amount of data exchange takes place from the side of the patient and the guidelines also makes it compulsory for the RMP to store and keep a record of all this electronic health record[v]. A Registered Medical Practitioner (RMP) is free to choose the mode of communication for providing telemedicine[vi]. The guidelines provide for various types of information related to health conditions which are needed to be provided by the patient to the RMP over telemedicine[vii]. Further, the guidelines provide for the maintenance of privacy as well as medical ethics following the Indian Medical Council act and rules[viii]. The guidelines also state that the RMP would have to follow and abide by various data protection laws such as the Information Technology Act and other data protection laws and rules (present as well as notified in future) which provides for the protection of patient’s data[ix]. The guidelines also highlight the breach of confidentiality by the doctors would be declared misconduct and will be penalized by IMC act, ethics, and other laws[x]. The doctors are exempted from charges in cases where there is reasonable evidence to believe that the breach is due to some technological error with no involvement of the RMP[xi].

Reading Telemedicine Guidelines with data privacy laws

Personal information and Data protection Rules 2011

It is quite clear that telemedicine guidelines would have to be read in conjuncture with data protection laws of the country to protect the privacy of the patients. After the judgment of K.S Putttuswamy v. Union of India[xii], privacy is well recognized as the part of the fundamental rights of the citizens. The data protection laws in India are governed by the Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules 2011 under the IT act. The judgment of Puttuswamy has led forth the Personal Data Protection Bill, 2019 which is in the process of getting passed by the parliament any time soon this year or the coming year[xiii]. The IT rules of 2011, as well as the new personal data protection bill, treats ‘Health Records’ as ‘sensitive personal data or information (SPDI)’. Under the IT acts data protection rules, when a corporate body deals with SPDI (collection, storage, transfer, or processing of SPDI) the data protection rules get activated. The data protection rule considers consent as an important requirement so a doctor or institution is required by law to obtain the consent of the patient in writing for use of any of his data[xiv]. There is also a restriction of sharing SPDI to the third party without the consent of the patient[xv]. The institution collecting such SPDI also has to put a policy in place and mention clearly on their websites[xvi]. A standard of procedure to store data has to be maintained as well as there should be a requirement of modification[xvii] and opt-out[xviii] their SPDI if the need arises.

Role of Intermediaries

There are many e-health apps which just act as a facilitator between the patient and the doctors and are not as such directly involved in the transaction[xix]. In these types of cases, such apps or companies will act as an intermediary and would be subjected guidelines of IT act specifically for the intermediaries. Such intermediaries have to initiate certain due diligence such as including terms of use, the appointment of grievance officer, and removal of offending/unlawful content within 36 hrs of request.

Telemedicine Guidelines: gaps are still needed to be filled to protect mass sensitive data

With the advent of Corona virus pandemic even a lot of state governments are actively involved in providing their own guidelines[xx] and facility of telemedicine[xxi] through their empaneled state government doctors or through Public private partnership Apps and facilities. Although telemedicine has opened a whole new legal world still there are various legal inadequacies in the Telemedicine sector which the present telemedicine guidelines, IT act, and rules do not properly address.

Firstly the telemedicine guidelines make no difference between ‘data fiduciary’ (person who stores, collect and process massive volume of important data) and ‘social media intermediary’ and also what if both are the same. For instance, many corporate hospitals (eg Apollo)[xxii] which have a wide range of medical business are also providing telemedicine. Some pharmaceutical companies (eg. Lybrate)[xxiii] are also in the business of telemedicine.

E-Pharmaceutical companies are already facing uncertainties in regards to online sale of drugs with central government coming out with Draft Rules 2018 to regulate e-pharma amending earlier Drug and cosmetic rules of 1945[xxiv]. These rules will also throw light on protecting data of patients seeking medicines online. But how will draft rules and telemedicine guidelines be able to regulate e-pharma companies who are even providing telemedicine is an area government needs to focus on since these types of companies have huge amount of sensitive data of patients and prone to misuse. Many of these apps even provide for their internal channels of communication for doctors and patients. While taking services from these sites there would be the transmission of the huge amount of electronic medical records to these companies. Since doctors belong to the same company or use a communication channel of the company who is acting as social media intermediary, then believing that data is not shared between them is being very optimistic.

Access to such a huge amount of ‘sensitive personal data’ to the hands of corporates without any supervision is troublesome. These data might be used to create an algorithm for targeted advertising, sharing with 3^rd parties, and moving huge data outside the country. In such a scenario if there is any data breach who would be liable? is a question on which the guidelines are silent. And as the data protection law stands today, there is not much to offer.

So, we have to go through the pending data protection bill[xxv] to find some answers. In the Data protection bill two types of entities have a huge due diligence obligation in terms of dealing with personal data’s namely ‘significant data fiduciary’ and ‘social media intermediary’. Under the bill, the obligation which is associated with the significant data fiduciary (a person holding a huge amount of important data to be notified government) is extended to the social media intermediary(‘an intermediary who primarily or solely enables online interaction between two or more users and allows them to create, upload, share, disseminate, modify or access information using its services[xxvi]’). These significant data fiduciaries and social media intermediaries will be notified by the government.

In addition to provisions provided for significant data fiduciaries like maintenance of records[xxvii], data protection impact assessments[xxviii], an audit of policies[xxix], and appointment of a data protection officer[xxx], Social media intermediaries are obligated to put forth an option to the users (registering from India or using the services in India) for voluntary verification of their accounts. The provisions for ‘significant data fiduciary’ and ‘social media intermediary’ seems promising for companies dealing with electronic medical health records but whether these hospitals providing telemedicine would be notified under ‘significant data fiduciary’ or the e-health apps storing huge amount of data as ‘social media intermediaries’ is a question of time as the bill is still pending.

Parting note

The telemedicine guidelines are a huge breakthrough in the field of medical sciences. The guidelines have tried to address a huge amount of anxieties and uncertainties about the practice of telemedicine but in the context of data protection, the guidelines sadly have not much to offer. The guidelines have to be read along with data protection laws of the country and as the data protection laws of the country currently stand there is not enough impact to ensure the protection of sensitive patient data from the hands of big hospitals doing telemedicine themselves and e-health apps acting as an intermediary for telemedicine. The new data protection bill, 2019 if passed as it is, it would address a lot of these gaps provided the government notifies these hospitals and e-health apps as significant data fiduciary and social media intermediaries respectively. Another pending bill such as Digital Information Security in Healthcare Act (DISHA), a regulatory platform for sharing digital records among hospitals and will be based on setting digital health records in the country[xxxi].  DISHA  will be clubbed with Personal data protection bill along with telemedicine guidelines would be something to look forward.

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[i] https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6618173/

[ii] https://medicaldialogues.in/indian-medical-association-seeks-clear-cut-guidelines-on-telemedication-from-medical-council-of-india

[iii] https://www.mohfw.gov.in/pdf/Telemedicine.pdf

[iv] Criminal Anticipatory Bail Application No. 513 OF 2018

[v] Telemedicine guidelines 2020, section 3.7.2

[vi] Telemedicine guidelines 2020, section 1.4.1

[vii] Telemedicine guidelines 2020, section 3.5

[viii] Telemedicine guidelines 2020, section 3.7.1

[ix] Id

[x] Id

[xi] id

[xii] 2017 10 SCC 1

[xiii] https://prsindia.org/billtrack/personal-data-protection-bill-2019

[xiv] Rule 5(1) of the Data Protection Rules

[xv] Rule 7 of the Data Protection Rules

[xvi] Rule 4(1) of the Data Protection Rules

[xvii] Rule 5(7) of the Data Protection Rules

[xviii] Id

[xix] https://www.dr-hempel-network.com/digital-health-startups/doctor-patient-platforms-in-india-success/

[xx] See Maharastra: https://www.maharashtramedicalcouncil.in/Files/Notifications_26032020_MCI%20Notification%20Regarding%20TELEMEDICINE.pdf, See Karnataka: https://www.mondaq.com/india/healthcare/905172/karnataka-government-notificationregulations-on-covid-19

[xxi] See kerela: https://economictimes.indiatimes.com/industry/healthcare/biotech/healthcare/kerala-govt to-use-telemedicine-service-e-sanjeevani-for-non-covid-patient-care/articleshow/76370573.cms?from=mdr,

See Westbengal : https://www.newindianexpress.com/nation/2020/jun/30/west-bengal-sets-up-covid-warrior-club-to-help-contain-pandemic-2163150.html, See Tamil Nadu: https://tsitn.org/telemedicine-facilities-in-tamil-nadu/, See Karnatka: https://economictimes.indiatimes.com/news/politics-and-nation/karnataka-govt-launches-apthamitra-helpline-and-app-to-fight-covid 19/articleshow/75293952.cms?from=mdr, See Delhi: https://www.newindianexpress.com/cities/delhi/2020/jul/04/aap-launches-district-surveillance-telemedicine-hub-to-help-with-covid-19-requirements-2165260.html, See Rajasthan: https://timesofindia.indiatimes.com/city/jaipur/rajasthan-government-starts-free-medical-tele-consultation-service/articleshow/75540116.cms

[xxii] id

[xxiii] id

[xxiv] https://www.mondaq.com/india/food-and-drugs-law/865476/regulations-for-online-sale-of-medicines and-drugs-in india#:~:text=India%3A%20Regulations%20For%20Online%20Sale%20Of%20Medicines%20And%20Drugs%20In%20India&text=The%20draft%20rules%20prescribe%20that,registered%20with%20the%20applicable%20authority.

[xxv] Supra

[xxvi] Section 26 (4) Private Data protection bill, 2019

[xxvii] Section 28 Private Data protection bill, 2019

[xxviii] Section 27 Private Data protection bill, 2019

[xxix] Section 29 Private Data protection bill, 2019

[xxx] Section 30 Private Data protection bill, 2019

[xxxi] https://pib.gov.in/Pressreleaseshare.aspx?PRID=1578929

Simplifying FinTech and FinTech Laws: All the laws that govern digital payments and transactions in India

Over the years, the financial services industry has become increasingly regulated in terms of adoption of technologies for facilitation and disintermediation of transactions. The extensively fragmented laws and regulations certainly make it difficult for any person and entity to objectively find the mandatory requirements that a law imposes upon them. This post will give you a brief overview of fintech laws and the various ways in which they govern our digital transactions. This post is the third one in the series of ‘Simplifying FinTech and FinTech Laws’.

The legal topography that regulates the Fintech services in India is majorly distributed, and there is not a single comprehensive regulation or legislation that governs the Fintech industry in the country. The lack of a complete and comprehensive single set of guidelines or regulations makes it hard to refer to actual authorities that are supposed to govern the Fintech in India. The legislative or regulatory, whichever it is, primarily comprises of:

The Payment and Settlements Act, 2007

The sources of law that actually governs payment in Indian jurisdiction are the Payment and Settlement Systems Act, 2007 (PSS Act) and the Payment and Settlement Systems Regulations, 2008 and rules as issued thereunder. Basically, these are the statutes from which India’s central bank, the Reserve Bank of India, derives power to function and regulate payment and settlement system in India. In accordance with the PSS Act, the RBI has wide discretionary powers to issue orders, directions and rules to financial systems established in India. There are several recommendations (pending), to change the PSS Act and form a new regulatory board named as the Payments Regulatory Board (PRB), while the necessary amendments to the PSS Act still await.

As per the PSS Act, any person inclusive of the non-banking financial companies (NBFCs) which want to undertake the operation of a payment system, may do so as upon taking the authorization by the RBI. The Act provides several eligibility criteria that are required to be fulfilled by that person or company wishing to operate as a payment system. Further, technology facilitators between merchants and banking institutions (that process and settle the transactions), are known as ‘Gateway Service Providers’, doesn’t have to acquire any authorization from RBI. For instance, common gateway service providers are BillDesk, RazorPay, InstaMojo etc.

The PSS Act is the primary legislation that governs the regulation pf [ayments in India. The PSS Act provides the definition of the “payment system” such that:

“a system that enables payment to be effected between a payer and a beneficiary, involving clearing, payment or settlement service of all of them, but does not include a stock exchange”.

Master Direction on Issuance and Operation of Prepaid Payment Instruments

Prepaid Payment Instruments (PPIs) that are pre-loaded values (basically your PayTM or Freecharge wallets) and in some cases that value can be utilized for a specified purpose only as payment (basically Ola Money). PPIs provide the value to existing in a specified form which facilitates the payment for goods and services also in certain cases person to person remittance transactions of money for eg. sending money to your friends or family members. As defined in Rule 2.3 of the Master Directions:

“PPIs are payment instruments that facilitate purchase of goods and services, including financial services, remittance facilities, etc., against the value stored on such instruments. PPIs that can be issued in the country are classified under three types viz. (i) Closed System PPIs, (ii) Semi-closed System PPIs, and (iii) Open System PPIs.”

The Master Directions were issued by the RBI on October 11, 2017, and amended from time to time. It provides the eligibility criteria that is required to be followed by the PPI issuers, provides the thresholds for debits and credits that can be done using PPIs, and also provides the other operational obligations that are required to be fulfilled by a PPI issuer at the time of issuing such instruments to its customers in India. PPIs come into the ambit of the term ‘payment system’ as provided under the PSS Act and henceforth have to comply with the PSS Act and the Master Directions, both. PPIs include brand-specific gift cards, e-wallets like PayTM wallet, Freecharge, Mobikwik, shopping or travelling cards as issued by the Banks themselves, etc.

NPCI Guidelines governing the UPI Payments

UPI payments are governed through the Procedural Guidelines related to UPI and Operating and Settlement Guidelines related to UPI, as issued by the NPCI. As per the contemporary governing framework, the Banks only have the scope to provide UPI payment services to consumers. Banks are authorized to integrate the UPI platform into their payment systems. They operate over the UPI platforms by engaging the services of a technology provider, in such circumstances the Guidelines subject such technology providers and the Banks to strict compliance with certain norms as prescribed by the NPCI.

“The Unified Payment Interface enables architecture and a set of standard Application Programming Interface (API) specifications to facilitate digital payments using a mobile phone.”

Regulations related to Non-Banking Financial Companies (NBFCs)

The primary document of legislation that governs the NBFCs is the Reserve Bank of India Act, 1934 and subsequent to other secondary master directions and rules and guidelines and circulars which regulates the licensing and operation of such companies in India. The RBI has formed a set of thresholds that are required to be fulfilled in order to determine whether a business entity is to classified as a “financial services company” which also requires a license. Majority of lenders that operate digitally fall under the ambit of the term ‘NBFCs’. The most important regulation that holistically governs NBFCs is the Master Direction – Non-Banking Financial Company – Systemically Important Non-Deposit taking Company and Deposit taking Company (Reserve Bank) Directions, 2016, Master Direction – Non-Banking Financial Company –Non-Systemically Important Non-Deposit taking Company (Reserve Bank) Directions, 2016, and Master Direction – NBFC – Acceptance of Public Deposits (Reserve Bank) Directions, 2016.

Master Directions related to P2P lending platforms

The Master Directions- NBFC- Peer to Peer Lending Platform Directions 2017 incentivized a whole lot of activities for P2P platforms. It provided the P2P platforms to act as an intermediary, such that it has to comply with certain strict legal requirements and has to conduct proper due diligence of participants that are using the platform to finance or borrow. The Master Directions make it mandatory for P2P portals to check the creditworthiness in a form of an assessment and perform risk profiling of the borrower’s business or project, and actively share the disclosures with the potential investors or lenders. Further, RBI regulations bar the P2P platforms from lending or raising deposits or cross-sell any product over the portal. They are not required to facilitate any credit guarantee or secured loans. Cross-jurisdictional flows of funds are barred as per the Master Directions. Therefore, in toto, the Directions prescribe the norms that govern lender exposure and aggregate borrowing thresholds in the context of workings of P2P lending platforms in the country.

Guidelines to govern Payment Aggregators/Intermediaries

The RBI’s circular related to“Directions on opening and operation of Accounts and Settlement of Payments for Electronic Payment Transactions involving Intermediaries” as on November 24, 2009, (“Payment Intermediary Circular”), which lays down the legal framework that applies to the operation of payment gateways and intermediaries in India. Such intermediaries are strictly subjected to be in compliance with guidelines related to the operation of intermediary systems in Inda as provided under the Payment Intermediary Circular.
According to the RB I’s recent discussion papers, it has been suggested that the payment gateways and aggregators form a significantly critical link in the transaction flow, and henceforth it is required to regulate the activities as fall under the ambit of the PSS Act, 2007. The RBI has provided that the established contemporary guidelines governing payment intermediaries and gateway providers have to be reviewed in its Monetary Policy Statement for 2018-19.

RBI Guidelines on Payment Banks

The Guidelines on operation of Payment Banks and Guidelines for Licensing of Payment Banks as provided under the RBI’s governing framework elucidates that the governing regulations and measures related to licensing and operation of payments banks in India. The guidelines, among others, lays down the criteria for eligibility for registration or permissible operation and further other such guidelines that govern the working of payment banks. The Reserve Bank of India provides the purpose of setting-up Payment Banks such that:

“Reserve Bank of India says ―The objectives of setting up of payments banks will be to further financial inclusion by providing (i) small savings accounts and (ii) payments/remittance services to migrant labour workforce, low income households, small businesses, other unorganised sector entities and other users.”

Anti-Money Laundering (AML) Regulations and Know Your Customer (KYC) Regulations

Know Your Customer (“KYC”) is a term that indicates the customer identification process. The KYC norms include the prudential efforts made to ascertain the identity and ownership source of accounts, source of funds, the nature of customer’s business, and accountability of operations in the account in connection to the customer’s businesses etc which further assists banking institutions to manage the risks reasonably. The purpose of the KYC guidelines is to avoid and prohibit banks from being used, specifically as criminal essential of money laundering.

The Reserve Bank of India issued the guidelines to banks under Section 35A of the Banking Regulation Act 1949 and Rule 7 of Prevention of Money-Laundering (Maintenance of Records of the Nature and Value of Transactions, the Procedure and Manner of Maintaining and Time for Furnishing Information and Verification and Maintenance of Records of the Identity of the Clients of the Banking Companies, Financial Institutions and Intermediaries) Rules, 2005.

The key takeaway regulatory guidelines that prescribe anti-money laundering (AML) norms for fintech services in India are part of the PMLA, the PML Rule and the KYC norms included in the Master Directions.

Data Protection Regulations and Rules

Fintech is a data-driven industry due to which it faces a challenge or risk related to the data ownership and its security. Such a risk can be superseded by taking certain legal and technical measures only. There are choices of cybersecurity measures that data labelling, optional information sharing and identified data shareholding, which can be the response to various data-driven challenges that the fintech space is facing.
Unauthorized access to customers’ data is a threat to data privacy, which actually violates the fundamental right to privacy, and therefore a significant challenge to the Fintech platforms engage in gathering and storing several forms of financial and behavioural data. India, right now, doesn’t have any comprehensive legislative or regulatory framework that governs data protection. The Information Technology Act 2000 and the IT (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules, 2011, contemporarily provide for the obligations of corporations or businesses to take reasonable measure in order to protect the personal data of consumers.

Further, the draft Personal Data Protection Bill, 2018, that is in pipeline can be best described such that:

“The draft Personal Data Protection Bill (2018) contains provisions that go beyond just the requirements of the IT Rules. The Bill specifies a notice and consent framework with explicit consent in the case of sensitive personal data. Explicit consent is understood as consent that is informed, clear, and specific along with being free and capable of being withdrawn.”

Recommended Readings:

1. Aayush Rathi and Shweta Mohandas, Fintech in India: A study of privacy and security commitments, The Centre for Internet and Society, at https://cis-india.org/internet-governance/files/Hewlett%20A%20study%20of%20FinTech%20companies%20and%20their%20privacy%20policies.pdf (last accessed on 12/10/2019).
2. Dr. R Srinivasan and Prof. M. Subramanian, Payment Banks in India – Demystified, SSRG-IJEMS, Vol. 2 Issue 12 (December 2015).
3. Department of Payment and Settlement Systems, Discussion Paper on Guidelines for Payment Gateways and Payment Aggregators, Reserve Bank of India, at https://www.rbi.org.in/Scripts/PublicationReportDetails.aspx?UrlPage=&ID=943 (last accessed on 12/10/2019).
4. Latha Ramesh and Yashika Gandhi, Reserve Bank Regulations for P2P lending platforms, Deccan Herald, at https://www.deccanherald.com/business/economy-business/reserve-bank-regulations-p2p-718950.html (last accessed on 12/10/2019).
5. Rahul Gochhwal, Unified Payment Interface- An advancement in Payment Systems, American Journal of Industrial and Business Management Vol.7 Iss.10, 1174-1191, at https://www.researchgate.net/publication/320661583_Unified_Payment_Interface-An_Advancement_in_Payment_Systems (last accessed on 12/10/2019).
6. Shilpa M. Ahluwalia & Himanshu Malhotra, Fintech 2019 in India, Golbal Legal Insights, at https://www.globallegalinsights.com/practice-areas/fintech-laws-and-regulations/india (last accessed on 12/10/2019).
7. Shaikh Zoaib Saleem, What are prepaid payment instruments?, Livemint, at https://www.livemint.com/Money/Wq5AT6vx1JklC0lRSMbnSI/What-are-prepaid-payment-instruments.html (last accessed on 12/10/2019).

Delhi HC has expanded the scope of injunction orders in Internet jurisdiction: Geo-blocking to Global-blocking in IT law

This post has borrowed extensively from an earlier blog-publication by Aryan Babele on Tech Law Forum @ NALSAR.

On 23^rd October 2019, the Delhi HC has delivered an impactful judgment authorizing Indian courts to issue “global takedown” orders to Internet intermediary platforms like Facebook, Google and Twitter against illegal content as uploaded, published and shared by their users. The Delhi HC delivered the judgment on the plea filed by Baba Ramdev and Patanjali Ayurved Ltd. requesting the global takedown of certain videos which are defamatory in nature.

The Court passed the order in the context of its observation that there is a ‘hare and tortoise race’ between technology and law such that the ‘technology gallops, the law tries to keep pace’. Such observation reflects that the Court’s intention is to interpret IT law in the manner which will ensure the effective implementation of the judicial orders throughout the internet jurisdiction and mitigate the circumvention of such orders by use of the advanced technology.

However, the Court’s order is attracting criticism globally from several internet-freedom activists. It seems that the Court has made a hasty attempt to win the ‘hare and tortoise race’ and has missed on considering the far-reaching implications of it on the IT law jurisprudence and conflict of law provisions. This article aims to analyze and indicate the significant points in the Delhi HC’s judgment, which the Court lacked in considering while relying on the unsettled jurisprudence of global injunction orders.

Background- The case of Swami Ramdev v. Facebook

In Swami Ramdev v. Facebook [CS (OS) 27/2019 – Delhi HC], Swami Ramdev (a prominent yoga guru and public figure) filed a case before the Court against Facebook, Google, YouTube and Twitter, inter-alia, praying for the global take down of defamatory contents (videos) as uploaded, published and shared by users of these intermediary platforms.

The given case stems out of the publication of videos on defendants’ platforms, which are based on those particular offending portions of the book titled “Godman to Tycoon: The Untold Story of Baba Ramdev’ by Priyanka Pathak Narain, which are already undergoing an ad-interim injunction as granted by the Court in Swami Ramdev v. Juggernaut Books [CM (M) 556/2018] in May 2018.

Subsequently, in January 2019, the Court passed an interim injunction against the defendants’ platforms to disable access to the offending URLs and weblinks for the Indian domain as per Section 79 of the Information Technology Act, 2000, [hereinafter referred as IT Act 2000] i.e. ordered geo-blocking.

However, the plaintiff argued that the geo-blocking is an ineffective solution as the objectionable content is widely available on the global internet and internet users in India can still access such content using VPNs and other such mechanisms. Therefore, the only effective remedy, according to the submission of plaintiff, is to issue a global blocking order.

Internet intermediaries have contended against such a global take down mechanism as it poses a number of technical and legal difficulties for them. Firstly, cross-jurisdictional laws vary in standards for determining defamation, and hence disabling access globally will breach the principles of international comity. Secondly, in order to globally disable access to the content, the intermediary platforms have to monitor every upload on their platforms which is technically difficult and legally wrong.

The Delhi HC’s Judgment

The Court agreeing with the plaintiffs’ submission went on to held that the online intermediary platforms can be ordered to take down content globally by a competent court in India, as the content is published on their global services. It observed that the complete removal is needed because there are easy –to-use technology applications available widely that helps local users in circumventing the geo-blocking and render the take-down order useless. Therefore, an absolute removal globally is an absolute remedy, as per the Court’s observations.[1]

Further, the following directions, hereby in brief, have been put forth by the Court to support its order:

• The Court broadened the interpretation of Shreya Singhal v. Union of India: As per the Court, Section 79 of the IT Act 2000 provides that in order to avail the safe-harbor immunity, “intermediaries have to take down and disable access to the offending material residing in or connected to a computer resource in India”. It interpreted the definition of ‘Computer Resource’ as given in the IT Act, such that the “Computer Resource” as per the judgment “encompasses within itself a computer network, which would include a maze or a network of computers. Such a computer network could be a global computer network”.[2]
• Global take downs are technologically possible: The Court held that whenever any content violates the community standards of the internet intermediary platforms, such content is taken down globally by the platform on its own. Therefore, it observed that it is technologically possible for the platforms to take down content globally on the orders of the competent courts as well.
• Application of IT Act in extra-territorial jurisdiction: In order to justify the global take down, the Court explained that, “a perusal of Section 75 of the Act shows that the IT Act does have extra territorial application to offences or contraventions committed outside India, so long as the computer system or network is located in India”.[3] Therefore, the Court held that as long as the content has been uploaded from the Computer Resource located in India, Indian courts will be competent to pass the global injunction/ take down orders.
• Allowing the direct ‘Notice-and-Takedown’ mechanism for the future uploads of the objectionable content: The Court has held that the plaintiffs can approach the intermediaries directly if it finds the publication of the questionable content again on their online platforms in future. However, the Court has provided an option of the counter-notice system for intermediaries, by opting which the intermediaries can refute claims of illegality and shift the onus of proof back on plaintiffs, such that after which the plaintiffs will have to approach the Courts for an appropriate remedy.

Observations: the Loopholes, Unsettled Jurisprudence and the Comment

The Loopholes

It is completely understandable that the Court is favouring the global take-down order to make its injunction orders against global services more effective. Unfortunately, in its broad evaluation of legal feasibility of the global injunction order and technological capabilities of intermediaries to obey the same, the Court missed on considering certain very significant arguments[4]:

• Use of VPNs another way around: The Court agreed to the plaintiffs’ argument that due to the wide availability of the easy-to-use applications like VPN, the geo-blocking is circumvented. However, it didn’t consider the circumvention in the case other way around, in which the user can upload the content using VPN and other web proxy services, and can further easily fake the IP address to make it look like as if the content is being uploaded from outside India, negating the Court’s jurisdiction. Therefore, global takedown order, even at prima facie, doesn’t seem to be the appropriate remedy.
• In denial of the principle of international comity and right to information: The cross-jurisdictional defamation laws vary on a large scale. If global takedown was mandated, the platforms will be wary of falling foul of the law in other countries. For eg., if Indian courts mandate the global takedown of the content which is not at all questionable as per the laws of certain countries, the takedown order will be in contravention of the right to information of citizens of that country. Not respecting the laws of other country amounts to the breach of the principle of international comity and conflict of laws.[5]
• Without due consideration to the rights to free speech and privacy: The Court failed to understand the technicalities that involved in the operation of global take down orders, the intermediary platforms have to start monitoring each and every content that is being uploaded in order to stop the dissemination globally. This will further impose the risk of private censorship on the Internet and affect the right to free speech and privacy of users. The constant and close monitoring has been held as not warranted by law as per various precedents of Indian courts.[6]
• Shifting away from the law established by the Manila Principles on Intermediary Liability and Shreya Singhal case: The Court has allowed plaintiffs to directly approach the intermediary platforms in case of re-uploading of the objectionable content in future. This is a great shift away from the existing process under Section 79 of the IT Act, 2000 as established by the Supreme Court’s landmark judgment in the Shreya Singhal case, which requires intermediaries to take down or disable the access to the content only in cases of receiving an order from either the government or the Court to do so. The same is considered global best practice according to the Manila Principles on Intermediary Liability.
• The question of extraterritorial application of the IT Act in the present case: As per the Section 75 of the IT Act 2000, it is clear that the Act applies extra-territorially to certain offences or contraventions committed outside of India if the same is committed using “a computer, computer system or computer network located in India, the contraventions as contemplated under the Act are provided for in Sections 43, 43A, 66A, 66B, 66 66E and Section 66F.” Defamation is not covered in any of these provisions.[7]

Heavy reliance on the unsettled jurisprudence

The Court has heavily relied on certain foreign judgments while reaching the conclusion in its own judgment. The issue with the same is that the jurisprudence around geo-blocking and global injunctions is unsettled and still developing; with the Delhi HC’s order adding more confusion to the same.

The Court has relied on the case of Google Inc. v. Equustek Solutions Inc., which is the living proof of the unsettled jurisprudence.[8] The Supreme Court of Canada ordered Google to de-index listings from its search results in order to provide protection to trade secrets of a subject from Google globally. While, the Supreme Court of Canada upheld a global injunction against Google, the US Court sided with Google ruling that the Canadian order “threatens free speech on the global internet”.

The Court also relied on the case of Eva Glawischnig-Piesczek v. Facebook Ireland Limited– in which the CJEU ordered Facebook and other platforms to remove questionable content, copies of the same and block the access to the same, globally. While emphasizing on the case, the Delhi HC didn’t consider at all the CJEU decision in the case of Google v. CNIL[9], in which it was held that the Google is not required to de-reference listings from its global service, just because the content has been declared to be illegal by an EU member state.

Comment

It is clear that the Delhi HC left a lot to consider before delivering the judgment such that from the complexities of territorial jurisdiction to the difference in nature of cross-jurisdictional laws. In the present case, the Court mainly failed to understand the varying nature of defamation laws across jurisdictions— such that in the UK, the burden of proof is on the defendants to prove that the content is not defamatory, while in the US, a heavy onus of proof is placed on the plaintiff.

The Court also failed to consider certain very important foreign judgments which have specifically highlighted the issue of difference in the nature of law. In Google v. CNIL, CJEU held that the ‘right to be forgotten’ (which was the main issue in the case) has differences in standards for its application and interpretation around the world. Therefore, it agreed that it is enough for Google to block access to the questionable content from the EU domain only. Further, in Bachchan v. India Abroad Publications Inc.[10], the Supreme Court of New York County refused to enforce a defamation judgment awarded by the High Court of Justice in London, England, ruling that it will be a threat to the free speech protections as offered by the First Amendment to the US Constitution.

Unarguably, internet jurisdictions have always been a challenge for the courts and governments. Courts have always been behind the technology in the race and unable to assert absolute jurisdiction. This makes the internet risks become a proverbial ‘wild west’ with no single comprehensive applicable law. The fact that injunction against an intermediary, on a global scale, doesn’t make it necessarily invalid and aggressive. After all, the limited denial of access in the local domain is not protecting the underlying rights at stake; global takedown seems the right method to ensure effectiveness. But all of this is required to be done while mediating the conflicting interests as well as recognizing the protection to certain forms of speech.

As Gautam Bhatia said in the context of Swami Ramdev v. Juggernaut Books last year, “Indian courts seem to increasingly view freedom of speech as a mere annoyance to be brushed aside when confronted with competing claims”. If global take-down orders will become mainstream, the regressive laws on freedom of speech and expression online will become a norm. The Courts and governments, in order to win this ‘hare and tortoise race’, shall not ignore the countervailing arguments in relation to freedom of speech and right to privacy. These rights shall not be considered under-weighed against the values like national integrity, security interests, etc., rather an effort shall be made to strike the balance between both the sides.

The judgment is under challenge now by Facebook before a Division Bench, and the matter is listed for final hearing on January 31, 2020. The Court must set a precedent in the unsettled jurisprudence that will consider the free speech and privacy rights in the world of internet at the intersection of technology and laws such as defamation law.

References:

[1] Para. 87, Swami Ramdev v. Facebook [CS (OS) 27/2019 – Delhi HC]

[2] Para. 78, Swami Ramdev v. Facebook [CS (OS) 27/2019 – Delhi HC]

[3] Para. 86, Swami Ramdev v. Facebook [CS (OS) 27/2019 – Delhi HC]

[4] Apoorva Mandhani, Why Baba Ramdev’s win against Facebook, Google in Delhi HC only adds to judicial confusion, The Print, https://theprint.in/india/governance/judiciary/why-baba-ramdevs-win-against-facebook-google-in-delhi-hc-only-adds-to-judicial-confusion/312403/.

[5] Balu Nair, Delhi HC Gives Expansive Interpretation to Section 79 of IT Act: Issues Global Blocking Order Against Intermediaries, SpicyIP, https://spicyip.com/2019/11/delhi-hc-gives-expansive-interpretation-to-section-79-of-it-act-issues-global-blocking-order.html.

[6] Delhi High Court Approves Take Down of Content Globally, SFLC, https://sflc.in/del-hc-orders-global-take-down-content.

[7] Para 16, Swami Ramdev v. Facebook [CS (OS) 27/2019 – Delhi HC]

[8] Google Inc. v. Equustek Solutions Inc., Cambridge Core, https://www.cambridge.org/core/journals/american-journal-of-international-law/article/google-inc-v-equustek-solutions-inc/E667668ED944EBE52233E17320478448/core-reader.

[9] Google v. CNIL, CJEU Case C-507/17.

[10] Bachchan v. India Abroad Publications Inc., 154 Misc 2d. 228, 585 N.Y.S.2d 661.

Simplifying FinTech and FinTech Laws: Trends and Regulatory Challenges related to FinTech in India

In the second quarter of 2019, Indian mobile payment leader PayTM surpassed China in the number of deals. Such a feat has been achieved while India is still an evolving fintech market in comparison to the developed fintech market like China. Red-tapism and the immense number of laws are the reasons of slow down for the FinTech market in India, but strict regulations are inevitable when it comes to a financial or technological company. The Steering Committee on FinTech related issues constituted by the Ministry of Finance, Department of Economic Affairs, submitted in September 2019 its report indicating various trends and challenges related to FinTech in India. This post discusses the same in brief. This post is the second one in the series of ‘Simplifying FinTech and FinTech Laws’.

Suggestions by the Steering Committee on Issues related to FinTech. Source: Economic Times

Trends related to Fintech in India

The FinTech sector in India is thriving and growing expansively, enabled by a large consumer base, innovatively boosted startups and balanced regulatory policies in the form of ‘Digital India’ programme. The Indian Fintech industry has grown by 282% in the last decade and has reached the valuation of USD 450 million in 2015. Currently, there are more than 400 fintech companies that are working in India and the investments are to be fueled with 170% by 2020. The Indian fintech market is expected to grow by USD 2.4 million by 2020 from the present USD 1.2 billion, as per NASSCOM report. The transactional value of Indian fintech sector is evaluated to be USD 33 billion in approx in 2016 and is further forecasted to reach the point of USD 73 billion by 2020.

Source: Bloomberg

FinTech facilities in India

The primary facilities offered by companies operating in the space of fintech are:

Pre-paid Payment Instruments

Also known as PPIs, this instrument enables the user to engage in the purchase of products that include products relating to financial services as well. To be able to purchase the products, a value entered into the e-wallets in the PPIs so as to make purchases against that value. There are 3 types of PPIs: Closed, semi-closed and open systems. Depending on the type, one may also have the facility to withdraw cash from the PPIs. Other than the banks, they can only be issued by institutions authorized to function in the arena of e-wallets or pre-paid card services.

UPI Payments

Managed by the National Payments Corporation of India, the UPI (Unified Payment Interface) provides a platform for quicker real time-based transactions, facilitating ease for the smartphone users to enter into multiple transactions with a lower cost than what the traditional method demands. Constituting a major part of the consumer behaviour in the market, the UPIs enable universality to the transactions they wish to enter in and engage in the greater number with the traders.

Digital Transactions

In the traditional financial market, it was only the banks that could lend money. However, with the convergence of technology and financial market, loans nowadays are even dispersed by non-banking financial companies, also known as NBFCs. The NBFCs with their interactive and user-friendly applications have attracted wide userbase in the digital arena to enter into credit purchasing, loan system after verification.

Lending Platforms

These lending platforms offered are Peer to Peer based. Such platforms bring together willing lenders and borrowers to enter into regulated transactions. As per the guidelines issued by RBI in this regard, the lending platforms can only be offered by the registered non- banking companies in India.

Online Sale and Purchase

The recent trends amongst many have also been that of online sale and purchase. To facilitate the same there requires to be a system whereby an entity collects payments form the purchases and send it across to the sellers. The entities involved in this function are known as payment aggregators or intermediaries. These entities electronically consolidate the payments done and transfer the same to the sellers.

Banking Services

Once begun as a measure to penetrate into the grassroots level of society the banking system and provide ease to the customers, digital banking services by the payment banks have now become a feature of the payment banks. The RBI has allowed payment banks to offer basic services involved in smooth banking by the customers online. This includes facilities such as accepting deposits (though RBI has placed a limit on it), view transactions, transfer funds, etc. However, this arena remains strictly regulated for not all facilities remain digitally available such as issuing credit cards.

Source: Bloomberg

Regulatory Challenges to Fin-Tech in India

While in India, digital finance firms are thriving as the government is continuing to issue pro-startup regulations and policies, the central regulatory body for Fintech i.e. the Reserve Bank of India, still suffers due to a traditionally rooted and established infrastructure which cannot be easily replaced with the updated regulatory framework that matches the advancements of technology.
Indian market is already recognized as the conservative and restrictive market and henceforth makes it difficult for Fintech firms to further instil the confidence in adopting the Fintech services in the absence of any concrete regulatory framework.
The commendable steps have been taken by the Indian government and regulatory institutions in a prompt manner, however, policies and regulations have to match the pace with which technological advancements in the finance sector taking place. This is much needed to ensure secure a transparent growth of Fintech in India.

Regulatory Uncertainty in the Fintech Sector

The foremost challenge that the regulator for the fintech sector has to dealt with by it the lack of regulations. Moreover, if there are regulations then to consolidate them is another major challenge. There is a requirement to “to support the formulation of policies that foster the benefits of fintech and mitigate potential risks”. Henceforth, a regulator or policy-maker has to work in the directions of “the modification and adaptation of regulatory frameworks to contain risks of arbitrage, while recognizing that regulation should remain proportionate to the risks.”

Digital On-boarding and Financial Inclusion

The two significant challenges that one can see as the huge mountainous tasks in the Indian context are: firstly, making the fintech platforms accessible to every Indian and secondly, analyzing the risks that are potentially present in trying out a scheme to provide digital onboarding. The Supreme Court recently decided upon the constitutionality of the Aadhaar, the ambitious government project to provide a unified identity. Aadhaar has been held constitutional but Section 57 of the Aadhaar Act was struck off. Section 57 provided the mandatory verification and linking procedure for consumers to avail a company’s service. The judgment is having serious implications on the government’s efforts to provide frictionless onboarding of consumers.

“The judgement impacted the delivery of financial services across verticals including bank account opening, loans, mutual funds and insurance. Though the judgement allows voluntary use of Aadhaar by consumers, there are multiple interpretations of it and the Unique Identification Authority of India (UIDAI) has resorted to safer approaches to avoid any more legal battles and stopped services to private entities altogether.”

Low Credit for Startups

Investors in the market are now hesitant to invest in fintech startups. The investors are baulking as there have been quite a number of bad loan incidents. The big setback to the fintech industry as well as the financial sector came into the form of IL&FS breakdown. The company defaulted against the inter-corporate deposits and commercial papers or borrowings. The incident has affected the whole fintech industry as the crisis included lending businesses that were key to a number of NBFCs as a funding source.

e-NACH crisis

The Apex Court’s judgment brought down to stoppage, another popular mode of financing which is also the foremost mode of debit for lenders, MFs and insurance, as in pulling money from customer’s account. This is yet another judgment that has slowed down the advancement and has promoted the traditional manner of physical registrations.

Data Protection

Both the traditional banking system and the fintech services gather a large number of data records from various of their clients, which contains a profile of behavioural and financial information. Though the utility of such data is positive when it is used for a specific purpose of improving the services, it leads to giving way to a heap of privacy issues as well, especially when the financial service provider engages a third party’s technology services.

The judiciary recognized the risk of data privacy to the banking sector’s consumer in the case of Punjab National Bank v Rupa Mahajan Pahwa, “in which Punjab National Bank had issued a duplicate passbook of a joint savings bank account, held between the petitioner and her husband, to an unauthorized person”.

Other Challenges to the Fintech system in India

In terms of regulatory standards, India lacks in providing a comprehensive cybersecurity framework to reduce the cyber-crime issues. The competition law has also, in some sort of stages, have failed to control the domination of certain advance fintech NBFCs.

Recommended Readings:

• Fintech in India: Powering Digital Economy, NASSCOM, at https://community.nasscom.in/download.php?file=wp-content/uploads/attachment/18283-fintech-lending—unlocking-untapped-potential.pdf.
• Opinion: The Challenges for fintech adoption in India, LiveMint, at https://www.livemint.com/Opinion/Wyt5KOOS43ebC4feFCiYWN/The-challenges-for-fintech-adoption-in-India.html.
• Justice (retd.) KS Puttasamy v. Union of India, 2017 10 S.C.C. 1.
• Jitendra Gupta, 3 major setbacks for fintech industry, LiveMint, at https://www.livemint.com/Money/jxepdJVODLb6fGDfhue6qI/3-major-setbacks-for-fintech-industry.html.
• Punjab National Bank v Rupa Mahajan Pahwa, IV (2015) CPJ 620 (NC).

Key Points from Mark Zuckerberg’s call for regulation of the Internet: harmful content, data portability, election interference, privacy

This article authored by Aryan Babele has been first uploaded in MediaNama.

In his article in the Washington Post, Facebook founder Mark Zuckerberg suggested the need for new rules from lawmakers to balance the interests and responsibilities of all the different stakeholders’ i.e. people, companies and governments. He called for regulation on four areas require an active role of governments and regulators: harmful content, election integrity, privacy and data portability.”

Key Legal Improvements that Mark Zuckerberg suggested (Read)

1. Harmful Content

• Content takedowns subject to appeals: In the absence of any legal standards, most of the social media platforms adopt self-regulation, but struggle because of a large base. Zuckerberg says that people should understand the difficulty that internet companies face in “deciding what counts as terrorist propaganda, hate speech and more”, that Facebook realises that they have “too much power over speech” and therefore to reduce it, the decisions regarding any speech should be subjected to an appeal before independent bodies. This seems to be how Facebook is looking to limit the move away from self-regulation.
• Define standards for harmful content: There is a need for defining standards by third-party bodies on harmful content against which the distribution of harmful content will be governed and measured. “Internet companies should be accountable for enforcing standards on harmful content”. Zuckerberg proposes that “regulation could set baselines for what’s prohibited and require companies to build systems for keeping harmful content to a bare minimum”.
• Quarterly compliance reports: He also suggested an idea of mandating the publication of transparency reports in every quarter of the year by every major Internet service company, which Facebook already publishes. He says that this “is just as important as financial reporting.”

Indian scenario on harmful content:

• The government released a draft of The Information Technology [Intermediaries Guidelines (Amendment) Rules] 2018 on 24th December 2018, which are intended to curb the misuse of social media and stop the spreading of ‘unlawful content’. Although no clarity on the definition of “unlawful” content has been provided, leaving it open to abuse.
• As there is no standard has been adopted to filter the “unlawful” content in the draft, it forces companies to take judgment calls regarding content on the basis of “take down first, think later”. However, the draft promotes the deployment of “automated tools to filter content”.

2. In terms of Election Interference: It is important to highlight the importance that Zuckerberg has given to the legislation for creating common standards in terms of regulations that govern political information campaigns and verification of political actors. “Facebook has already made significant changes around political ads: Advertisers in many countries must verify their identities before purchasing political ads”, he says, while adding that “deciding whether an ad is political isn’t always straightforward”.

• Updating online political advertising laws: “Online political advertising laws primarily focus on candidates and elections, rather than divisive political issues where we’ve seen more attempted interference.” Laws related to elections are temporal even when political campaigns are non-stop and may include controversial use of data and targeting. Therefore, he said that “legislation should be updated to reflect the reality of the threats and set standards for the whole industry”.

Indian scenario on online Election Interference:

• Election laws in India are very ill-equipped when it comes to dealing with online political advertisements. The Election Commission, which is the constitutional authority that regulates state and national elections, is itself relying on online platforms to self-regulate and prevent ‘illegal’ content. In absence of any comprehensive legislation that can provide Election Commission with the authority to make rules and standards for monitoring the online political advertisements, these online platforms are open to censor or amplify certain information without transparency.
• In January, the committee led by senior deputy election commissioner Umesh Sinha submitted its report to the commission that recommended modifying the provisions of Section 126 (prohibits displaying any election matter by means, inter alia, of television or similar apparatus, during the period of 48 hours before the hour fixed for conclusion of poll in a constituency) and certain other provisions of the Representation of the People Act, 1951, including provisions of the Model Code of Conduct to bring Social Media platforms under its purview.
• Chief election commissioner Sunil Arora said all major social media platforms — Facebook, Twitter, Google, WhatsApp and Share Chat — are taking measures such as verification of political advertisers’ credentials, sharing expenditure on it with the Election Commission (EC) through public databases and adhering to the “silence period” that comes into effect 48 hours before the polls.

3. In terms of Data Protection and Privacy:

• Adopting GDPR as a globally harmonized framework: Reiterating the common demand of entrepreneurs for a globally harmonized framework of regulations on data protection, Zuckerberg agrees that there is a need to develop privacy regulations in line with the European Union’s General Data Protection Regulation (‘GDPR”). He further insists that “New privacy regulation in the United States and around the world should build on the protections GDPR provides”. GDPR approach to privacy regulation serves as the best example for the common global framework as it provides certain standard protections – protects the right to choose how the information should be used and does away from the process of data localisation as it subjects the data to unwarranted access. Such protections together will establish a framework under which companies like Facebook can be held accountable when it makes mistakes.
• The Data Protection framework must not be ambiguous: Lawmakers should adopt new privacy regulations which must be clear on the points that even GDPR failed to clarify. “We need clear rules on when information can be used to serve the public interest and how it should apply to new technologies such as artificial intelligence”.

Indian Scenario on Privacy Regulations:

• Till now the only legal protection provided to personal information in India is through section 43A of the Information Technology Act and the Information Technology (Reasonable security practices and procedures and sensitive personal data or information) Rules, 2011 developed under the section. This provision mandates that a body corporate which ‘receives, possesses, stores, deals, or handles’ any ‘sensitive personal data’ to implement and maintain ‘reasonable security practices’, are held liable to compensate those affected when they failed to implement such practices. Given the maturity of privacy jurisprudence in the most countries around the world, these rules are just a half-hearted approach cutting a sorry figure.
• In its landmark judgment in the Justice KS Puttaswamy case in August 2017, the Apex Court ruled the privacy as the fundamental right under Article 21 of the Constitution of India, though not in its absolute sense. Since then the government has taken significant steps to modify the privacy regulations in the line of GDPR of EU.
• As the Personal Data Protection Bill, 2018 as recommended by the Justice Srikrishna Committee is all set to be introduced in next session of the Parliament. It covers basic protections and even recommends the data localisation which has raised concerns among various Internet services.

4. Data Portability: “Regulation should guarantee the principle of data portability. If you share data with one service, you should be able to move it to another”. The data portability will provide the choice to people to select between competing for internet services. This can actually serve in balancing the interests of people and innovators. However, the application of data portability requires clear rules of about the liabilities of protecting information when data is transferred from one service to the other. According to Zuckerberg, “this also needs common standards” and the open source Data Transfer Project is a suggested standard data transfer format.

Indian Scenario on Data Portability

Data portability may also be considered an upgraded version of the right to access and the right to erasure of personal data, both of which are present in the current Information Technology (Reasonable security practices and procedures and sensitive personal data or information) Rules, 2011.