The hotel industry may struggle for reclaiming the lost occupancy in the near future as corporates are Corporates are expected to put restrictions on non-essential employee travel. Occupancy and may reach Pre-COVID levels by 2022 and 2023 respectively, with supply growth expected to remain dormant
The onslaught of COVID-19 has had a terrible impact from the hotel industry, which is staring at a loss of Rs. 90,000 crore. The industry had seen a good two months of January and February in 2020, and was on its path to recovery after struggling for achieving revenue targets in 2018 and 2019, says a report prepared by HVS India & ANAROCK.
The report says that the decade starting the year 2000 was substantially better for the hotel industry as compared to the year starting 2010. Supply growth in the 2010 decade has been substantially lower at 51% as compared to a 158% growth in inventory in the 2000 decade. Pune, followed by Bengaluru and Hyderabad, the tech epitomes of India, have witnessed the fastest growth in supply over the last two decades. Bengaluru has risen from being the 5th largest market in the country to the 2nd biggest, the report, a copy which was accessed by this writer, says.
Despite two decades of growth, India, continues to have the lowest proportion of branded hotel rooms compared with major Asian hotel markets. Shanghai and Beijing are nearly 10 times the size of our major hotel markets.
The hotel industry may struggle for reclaiming the lost occupancy in the near future as corporates are Corporates are expected to put restrictions on nonessential employee travel. Even for the essential employee travel, allowance limits are likely to be reduced. Senior Management travel also expected to reduce in the short term.
New hotel launches may get delayed as Under-construction projects may face delays on account of labour shortages and issues pertaining to vendors and supply chain. Whereas muted market conditions will lead to delayed opening and financing challenges on account of negative sentiment will delay projects. In fact, some proposed hotel projects may be cancelled or changed altogether as the changed market conditions will render the projects unfeasible. Some hotel properties may be repurposed for new asset classes like hospital, student housing and Co-living projects.
Do see the attached analysis on this page to get a clear picture on the state of the hotel industry, the previous two decades and the road head.
Tarun Nangia is the host and producer of Policy&Politics.
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Key legal challenges associated with artificial intelligence in India
Artificial Intelligence (hereinafter referred to as “AI”) and related technologies are crucial to the business ecosystem and are permeating into every sector. As AI gains more control over common subjects and services, it is bound to become potentially unpredictable and cause harm. While research on AI is being conducted all over the world, there are certain potential legal questions raised when it comes to the usage of AI. These range from criminal liability to data privacy concerns. This article addresses some of the key legal issues that crop up with respect to AI, across different sectors, as with an exciting new generation of AI solutions being developed it is essential that the same is regulated by a legal framework which allows AI to make the best possible impact in the economy.
In the event that there exists no legal definition for Artificial Intelligence, for the purpose of this article, Artificial Intelligence is defined as “a constellation of technologies that enable machines to act with higher levels of intelligence and emulate the human capabilities of sense, comprehend and act.”
Before one aims to pin point issues that arise with respect to an AI technology and attribute any liability to an AI technology, it is essential to determine the nature of the AI’s existence. This becomes important as the attribution of any liability would be based on the status granted to the AI in the country. To ensure their accountability under the law, AI entities could be treated as legal personalities, like corporations. Corporate liability of an individual was limited to motivate people to engage in commercial activities through corporations. The same principle could be extended to AI entities. This enables a number of advantages to the existing legal system to tackle upcoming challenges by AI without the need to make drastic changes in the legal system, to effectively solve AI related problems as AI developers are largely concerned about the liability arising from its actions.
As mentioned above, assuming that an AI technology is given the status of legal personhood, in India, principles of tort law may be applied, in case of default by the AI technology. When an AI software is defective or use of such software injures the party using the software, it results in legal proceedings under the tort principle of negligence. In the case of AI, the software developer/programmer owes a duty of care to the customer/user. It is of course difficult to decide on the standard of care to be owed to the customer/user. The kind of software being implemented might assist in deciding the standard of duty of care that may be attributed to the software developer/programmer. For instance, if the system involved amounts to an “expert system” the befitting standard of care that would be that of an expert or a professional. Similarly, we could reason that if a person can be held liable for the wrongdoing of a human helper, the recipient of such support could be equally liable if they outsource their duties to a non-human helper instead, considering that such delegation is equally advantageous to them. The policy contention is quite compelling that using the assistance of a self-learning and autonomous machine should not be treated any differently from employing a human auxiliary, if such assistance leads to the harm of a third party . However, to hold the principal liable for the wrongdoing of another, it may be challenging to determine the standard against which the operations of non-human helpers will be assessed in order to emulate the degree of misconduct, as in human auxiliaries. The potential standard should take into consideration, that in many areas of application non-human auxiliaries are more safe and less likely to cause damage to others than human beings, and the law should at least not dissuade their relevance.
Again, assuming that an AI technology is granted the status of a legal person, the AI technology can be held liable under the criminal law system. For criminal liability to be established both the elements of mens rea( mental element) and actus reus (physical act) are essential to be present. The pertinent question that arises here is that how does an AI technology fulfil these two essential aspects of criminal liability? And how is an AI technology liable directly for the commission of an offence?
Assuming an AI is an innocent agent , the obvious question that arises is that who shall be held liable for the crime committed? Here there are two candidates at play, i.e. the programmer of the Al software and the user of the AI software. A programmer of an Al software might design a program in order to commit offences through the Al entity. Both the programmer or the user do not perform any physical act in the commission of the crime and therefore, they do not meet the actus reus requirement of the offence. The legal result of this is that the programmer and the user should be criminally liable, as the principle of mens rea or malafide intention is attributed to them for the specific offence committed, while the Al entity has no criminal liability whatsoever.
In another scenario, assuming there is excess involvement of the programmers or the users in the day to day activities of the Al entity, but without any intention of committing an offence by way of the Al entity, negligence or recklessness should be considered as the standard of mens rea.
Yet another viewpoint suggests that an Al algorithm might have many characteristics and qualifications that exceed those of an average human being, but all such qualities are not essential in order to impose criminal liability. As far as a human or a corporation is concerned, if they are able to fulfil both the essentials of the mental and physical elements, only then can criminal liability be imposed. Similarly, if an AI technology is capable of fulfilling both the essentials of mens rea and actus reus, then criminal liability can be imposed on the AI as well. So long as an AI technology, controls a mechanical or other mechanism to move its moving parts, any act by the AI technology here may be considered as performed by the Al technology itself, thereby fulfilling the requirement of the physical component, i.e. actus reus. As far as the mental element or mens rea is concerned, the only essential requirements that need to be fulfilled under the general ambit of criminal law are knowledge, intent, negligence, etc. Knowledge is defined as sensory reception of factual data and the understanding of that data. Most Al technologies are well- prepared for such kind of reception. The process of analysis in Al systems parallels that of human understanding. The cognitive ability of the human brain understands the data received by senses such as eyes, ears, hands, etc., by analyzing that data. Similarly, advanced AI algorithms are trying to emulate human cognitive patterns. Therefore, if a human being can be held criminally liable for an offence by fulfilling the two criteria of intention and physical act, why should an AI be exempt from the same?
Another potential legal issue that crops up is that of the AI being defective in nature. This attracts product liability. As per the concept of product liability in case of any defect in the product, the manufacturer or the seller of the product is to be held liable for any defect in the product. However, as far as equating an AI technology to a product is concerned, the question that often pops up is that is it fair to hold the creator liable for any injury or harm caused by the AI, as this would inevitably draw an analogy with the principle of strict liability. It is essential that all AI technologies should have limits placed on their ability to cause harm, and it could be argued that there is no better person than the creator to be able to prevent any such harm caused by the AI as well as compensate for any financial losses resulting from such harm.
With an increasing shift in business towards the digital set up, and an increase in the demand of software products, another area of concern, is that of Intellectual Property Rights, particularly the Patent law. As far as protection of AI innovation is concerned, the Patent Act,1970 currently provides protection only to the true and first inventor, which implies a legal person , which includes either a natural person or an artificial person, i.e. a corporation. Section 3(k) of Patent Act 1970 clearly states that “mathematical or business method or computer programme per se or algorithms are excluded from patentability. However, in the recent order by a quasi-judicial body, in the case of Ferid Allani v Union of India has stated that computer inventions that meet the criteria of a ‘technical effect’ , are patentable under the law. This order opens the doors for an enormous corpus of innovation to now become protectable and more valuable as patent protection for innovations in India is essential to foster innovation.
Any discussion on AI is incomplete without addressing the issue of data protection. The functioning of AI is based on the dataset that is used to train the AI’s actions. Therefore, it is essential that such data should be utilized in a safe manner. Since there is a wide range of data collected at an individual’s end, to be utilized, the problem lies with respect to the safe usage of such data. In the event that the Personal Data Protection Bill, 2019 ( hereinafter referred to as “PDP Bill”), is pending before Parliament, the Information Technology Act, 2000 alongside the Information Technology(Reasonable security practices and procedures and sensitive personal data or information) Rules, 2011 provide a framework, for protection of sensitive personal information, as far as body corporates are concerned. This apart, the Ministry of Electronics and Information Technology ( hereinafter referred to as “MeitY”) has acknowledged the imbalance with a few companies dominating the market and has recommended that there should be mandatory data sharing mandatory to open up competition in any concerned sector enabling startups, or for other community/ public interest purposes. This is to ensure startups and small medium enterprises are given equal opportunity as compared to big corporate giants and there is no monopoly by corporate giants.
Given that AI is a growing industry and India has a tremendous corpus of AI innovators, with the development of an imaginative legal framework to govern the same, AI innovation can be safely unlocked and fostered, in a fashion that is safe and yet dynamic.
The views expressed in this article are that of the author alone and do not reflect the views by any organization.
INDIA-ASEAN TRADE COULD REACH US$200 BN: PIYUSH GOYAL
Addressing trade barriers could take India-ASEAN trade to USD 200 billion, stated Piyush Goyal, Minister of Commerce & Industry, Consumer Affairs & Food & Public Distribution and Textiles, Government of India, while addressing the Indo – ASEAN Business Summit & Expo organised by Confederation of Indian Industry (CII) in partnership with the Ministry of External Affairs on 7 – 8 October, 2021.
The Minister stated that India considers ASEAN a valued partner and has contributed to the ASEAN COVID-19 Response Fund. He highlighted that during the pandemic India had not only met international service commitments, but had also shown to the world its capabilities of self-sufficiency by producing critical medicines, medical equipment, and vaccines, for domestic and export purposes, which has earned India the reputation of being the ‘pharmacy of the world.’
Today, 70 percent of the world’s vaccines are manufactured in India and the country’s prowess in producing affordable, standardised medicines make India a strong partner in mitigating the global health risks that are a top priority of Governments, affirmed Shri Goyal. India’s business friendly policies under the ambit of the Aatmanirbhar Bharat vision with Production Linked Incentive schemes amounting to USD 30 bn constituting APIs, drugs and medical devices open up a plethora of investment and partnership opportunities, he opined.
The India-ASEAN bilateral trade has grown significantly and stands at USD 80 bn and we should look at taking this to USD 200 bn. This is possible with strong collaborations between the countries and addressing the impediments on the way, said Shri Goyal. Misuse of the trade agreement including by third parties should be discouraged and this could instil more confidence in both sides to reduce tariffs for inter-ASEAN and Indian trade, he added.
Ministers from 7 ASEAN countries addressed the session.
Utilisation of digital and technology, especially in the 4th industrial revolution era can further strengthen the supply chain. One of the areas that we must work on is to build a vibrant and resilient supply chains through deeper trade and investment in the region, said H E Dr Khampheng Saysompheng, Hon’ble Minister of Industry and Commerce, Lao PDR. There must be a reduction in trade barriers such as non-tariff and technical trade barriers to ensure constant flow of goods and skilled man force across countries, he added.
Cambodia is highly committed to cooperating with India and ASEAN to seize the opportunity to make an environment for sustainable development, said H E Mr Chhuon Dara, Secretary of State, Ministry of Commerce, Royal Government of Cambodia. Enhancing trade efficiency through improving competitiveness by further strengthening the current trade facilitation mechanism is beneficial for trade within the region to be fast-flowing and efficient, he added.
India remains one of ASEAN’S largest trading partners, said H E Yang Berhormat Dato Seri Setia Dr Awang Haji Mohd Amin Liew bin Abdullah, Minister of Finance and Economy, Brunei Darussalam.
Please read concluding on thedailyguardian.com
Bilaterally, Brunei Darussalam has a steady trade economic relationship with India. In 2020, India is our 6th largest trading partner with a total trade value of over 583 million USD, he stated.
FTAs and enhanced economic cooperation are important, said Ramon Lopez, Secretary, Department of Trade & Industry, Philippines. Philippines looks forward to a more strategic, and wider economic partnership with India and ASEAN. ASEAN & India can work with other trading partners to seize the opportunity, he stated.
We should enhance economic cooperation through capacity building and technical assistance programmes, workshops, and seminars as well as outreach activities. Making strategic decisions will support the implementation and utilisation of ASEAN India treaty area, said H E Dr Pwint Sann, Union Minister, Ministry of Commerce, Myanmar.
It is important that ASEAN & India join hands in recovering from the adverse impact of the pandemic on the economy of the region, said H E Dr Jerry Sambuaga, Vice Minister of Trade, Indonesia. We need to keep our markets open, especially for medical & healthcare products and other essential goods, encourage trade facilitation, digital economy, produce assistance to our MSMEs, he added.
With the combined population of 2 billion people and the combined GDP of USD 5.6 trillion, ASEAN and India should work closely together to ensure open trade development and enhance entrepreneurial competitiveness, said H E Dr Sansern Samalapa, Vice Minister for Commerce, Thailand. Both sides should seek to transform farmers into smart farmers by making digital technology an integral part of their farming operations, he added.
Both India and ASEAN are home to rapidly growing markets and have a number of emerging opportunities in common sectors of interest including manufacturing, human development, logistics and transport, retail and human development, among others. Both sides together can contribute to building and diversifying supply chains, noted Mr T V Narendran, President, CII and CEO & Managing Director, Tata Steel Limited.
Business cooperation between India and ASEAN in areas of mutual interest such as FinTech, start-ups, and innovation, empowerment of youth and women and the development of MSMEs are important factors to take this multilateral connection to a higher growth trajectory, said Chandrajit Banerjee, Director General, CII.
Sr. Adv. Vivek Tankha (MP) requests Australian High Commissioner for Diwali as optional holiday, reduction of fees for Indian students
Sr. Adv. Vivek Tankha (MP), met Barrt O Farrell, the Australian High Commissioner to India on October 14th at Tankha’s residence. He requested Farell that it would be a great gesture if Government of Australia could kindly consider the Diwali day, November 4th, 2021 as an “optional holiday” in Australia for the people of Indian origin and similarly placed persons since it is a day of rejoicing and festivity. Also, he requested for working towards getting direct flight services operational for New Delhi to Sydney or Melbourne. Tanka also highlighted that the fee charged from Indian students in Australia is much more than what is charged from local residents, and requested it to be reduced.
Freedom of speech and expression on social media: Exploring the contours of a new paradigm
The innate relationship between FSE and social media has been explained aptly by Barlow. According to him, the internet promotes democratic values and gives its users an opportunity to express and share views and opinions with other people of the world. ‘That has made it the best place for self-expression.’
I . INTRODUCTION The shift from Times of India to Twitter, from job update corners of the daily newspaper to LinkedIn, from collecting photos in photo albums to Facebook and Instagram posts, from All India Radio to all time accessible YouTube, & from writing letters to texting on WhatsApp, this age of digitalization has revolutionized the life of all human beings. ‘Trending’, ‘texting’, ‘story’, ‘status’ etc. are the buzzwords of the 21st era. Expressing one’s views on social media is deeply related with the non-instrumental theory of freedom of speech and expression (for short ‘FSE’).
In this backdrop, it becomes quite pertinent to understand the pros and cons of the transformation brought by social media. In this article, the author endeavors to explain social media, FSE and their relationship with each other. Furthermore, it deliberates over the new challenges posed by social media, questions the ability of existing laws to curb them and then provides some probable solutions to tackle the same.
II. SOCIAL MEDIA VIS A VIS THE NON – INSTRUMENTAL THEORY Social media is an online platform where users from all over the world present their opinion freely by commenting, uploading and sharing their views in the form of text messages, photographs, and video or audio clips. Its features like openness, participation and interactivity are some crucial reasons behind its worldwide popularity. In the status quo, it is one of the most used tools for communicating and expressing one’s belief and opinion. The US judiciary in Reno v. ACLU has held that the written, spoken and visual expression posted on the internet is protected under the First Amendment. It further said that internet is “the most participatory form of mass speech yet developed.” The Indian Supreme Court in the case of Shreya Singhal v. Union of India has also held that citizen’s right of FSE over the internet is constitutionally protected.
The jurisprudence behind validation of FSE over the internet emanates from the non-instrumental theory. According to this theory, “speech and expression are essential to the development of the autonomy of an individual regardless of their utility and this is a desirable end in and of itself.” In layman terms, FSE helps a human being attain self-fulfillment by providing him/her the “right to rebelliously, vigorously and practically converse one’s mind”. FSE is not a means to achieve something but an end in itself. It provides the capability to articulate one’s views and opinions and present them sensibly and audaciously in front of others. The Hon’ble Supreme Court has also affirmed the same in the following words; “Freedom of expression has four broad social purposes to serve: (i) it helps an individual to attain selffulfillment… All members of society should be able to form their own beliefs and communicate them freely to others.” It further elaborated FSE as realization of an individual’s earnest desires and competence.
The innate relationship between FSE and social media has been explained aptly by Barlow . According to him, the internet promotes democratic values and gives its users an opportunity to express and share views and opinions with other people of the world. “That has made it the best place for self-expression.” Everybody is a performer on the stage of social media. It provides all participants (users) an equal and all time accessible platform to put forth their views. The expression of one’s fundamental beliefs and thoughts on social media is not necessarily done to promote democratic values (instrumental theory) but is more inclined towards attaining self-fulfillment & self-realization. The author argues that before the advent of social media the non-instrumental theory didn’t had much relevance in the discussions revolving around FSE but the emergence and rise of social media has provided a strong validation to the same.
III. FREEDOM OF SPEECH AND EXPRESSION & ITS RELATIONSHIP WITH SOCIAL MEDIA
In the words of Voltaire, “I may disapprove of what you say, but I will defend to death your right to say it.” These words very aptly summarize the law of FSE enumerated under Article 19(1)(a) of the Indian Constitution. These rights are not absolute and have been restricted with the help of provisions under Article 19(2) . The right to FSE is regarded as an essential step towards attaining liberty and is the hallmark of democracy. It occupies a prominent place in the order of priorities of liberty & is considered as the mother of all liberties. Justice Patanjali Sastri has rightly observed, “Freedom of speech… lays the foundation of all democratic organizations, for without free political discussion no public education, so essential for the proper functioning of the process of popular government, is possible” Social media is an important means of communication in the present world. We can’t imagine our lives without these platforms. These platforms transgress all geographical boundaries and help in exchanging and sharing information all across the globe. The reasons behind growth of social media include the increased use of internet, technological advancements, easy accessibility, inexpensive form of media and most importantly free space and ease of participation. It is popular among the youth as it is the best form of networking in the modern times. It helps them in creating their network and grab learning opportunities. It also provides a platform to the citizens of a nation-state to put forth their grievances and concerns & the state also at times has given due acknowledgement to the same. In the recent case of Lipika Pual v. State of Tripura , the Tripura High Court emphatically held that FSE over the internet is constitutionally protected. In this case, Smt. Lipika Paul was working at the post of UDC in the Department of Fisheries, Govt. of Tripura. It has alleged that she has violated Rule 5(4) of the Tripura Civil Services (conduct) Rules,1988 by posting comments on Facebook against a political leader which amounted to canvasing against the said leader. The Hon’ble Court held that the content posted didn’t amount to canvassing. Moreover, the same is protected under Article 19(1)(a) of the Indian Constitution.
IV. PROS AND CONS OF SOCIAL MEDIA
As everything has 2 sides, social media too has its own share of praises and criticisms. On the brighter side, it provides voice to all the under privileged sections of the society. It has slowly turned into a powerful tool of protest. Numerous social movements across the globe such as the “Black Lives Matter”, “Arab Spring” , “Occupy Wall Street”, “Shahbag movement” along with various Indian instances such as the “hokkolorob” , “CAA-NRC” agitations, farmers protest, scrapping of Article 370 etc. are a testimony to the important role played by social networking sites in the rise of these movements. It has been aptly stated that “The use of digital media had radically transformed on-line individuals from passive receivers into active shapers of content, from observers of activism into activists themselves.” The Apex Court has also held that FSE on the internet is constitutionally protected and indefinite extension of internet shutdowns shall be unconstitutional as the same is a hurdle in the enjoyment of FSE and hence violates Article 19(1) (a). Dutton has referred the current use of Internet and other digital information and communication technologies as Fifth Estate. He said that “the growing use of related digital technologies and Internet is generating a platform for networking individuals in ways that enable a new source of accountability in government, politics and other sectors. … establishing another independent source of accountability, what has been called as ‘Fifth Estate’.” As aforementioned, social media has turned observers into activists. But the problem occurs when these activists turn into hyper-activists by crossing the realm of law. It has been seen that at times things have turned ugly leading to incidents of riots and mob-lynching. The violence that took place in Bengaluru last year was because of a communal Facebook post , the murder of Nilotpal Das and Abhijit Nath in Assam because of the rumor that they were child-lifters spread through WhatsApp , murder of Kaluram in Karnataka occurred because of a fake video spread through WhatsApp forwards, and other numerous incidents testify the grave dangers posed by social media. According to an India Spend report, out of the 69 mob violence cases reported, 77% of them were the result of fake news forwards. WhatsApp was the chief source of spreading misinformation in 28% or 19 of the 69 cases. These websites are also used for polarization of the masses. They are used to set narratives that are completely opposite to actual realities. These social media platforms can very easily build a positive/negative impression of a person, organization or community. Once the news/information goes “trending”, no one endeavors to do a fact check and accepts the same as truth.
V. SELF REGULATION V. STATE REGULATION Stringent regulations are required to counter the above mentioned problems. The pertinent question here is ‘how’ to do the same. To draw a line between curbing of fake news and regulation of FSE is a difficult task. A straight jacket formula can’t be devised to counter the same. The second issue is the capacity to manage sheer volume of ‘user generated content’. It is an arduous task to fact check all the content generated. The third issue is to devise a way that would stop forwarding of fake messages without intruding the privacy of a person. There are two ways to manage all these issues: i) Self-regulation: Here, self-regulation denotes two meanings. The first meaning corresponds to the social media companies such as Facebook, Twitter etc. These organizations as the owner of such platforms have a bigger onus in terms of managing content and curbing misinformation. Secondly, they are certainly in a better position in managing all these issues and taking appropriate actions as and when required. To narrow down the huge bulk of user generated content, they should keep vigilance on the trending information and when the same is found untrue it should be taken down as soon as possible along with a statement by the organization that the said information lacked authority. They should incorporate appropriate safeguards for curbing fake accounts. The second meaning corresponds to the users that they should always do a preliminary fact check before sharing/forwarding any information on such platforms. ii) State-regulation – The second method is regulation by state through the means of laws, rules and regulations. State being the custodian of the life and limb of all its citizens has a duty to protect them from any mishappenings. In India, the reasonable restrictions imposed under Article 19(2) of the Indian Constitution do provide certain safeguards. Along with these, Chapter XI of the Information Technology Act, 2000 also includes provisions for regulating information on social media. However, when the state regulates these platforms, it generally tends to use the same in its own favor and forbids dissenting opinions infringing FSE. At times, actions by the state also amounts to intrusion into a person’s privacy.
Social media has developed as the ‘fifth estate’ of the modern world whereas FSE has been one of the fundamental underpinnings of all libertarian regimes since ages. FSE is the bulwark of democracy and social media platforms strengthen the same by promoting exchange of opinions, views, information, ideas, beliefs and much more all across the globe. The challenge before us is to balance the scales in such a manner so that an individual can enjoy his/her FSE without getting trapped into the cycle of misinformation. The author is of the opinion that self-regulation should be preferred over state regulation because of two prime reasons. Firstly, the owner organizations are in a better position to handle the situation when compared with the state and secondly, when power is in the hands of state it uses the same as a means to silence dissent. Hence, it is high time to promote and practice self-regulation as a means to uphold the principles of freedom of speech and expression.
Analysis of new information technology 2021 rules on social media
Social Media firms in India have to comply with the New Information Technology ((Intermediary Guidelines and Digital Media Ethics Code) Rules 2021 which was released by the Government of India on 21 February, 2021. These rules have been framed in exercise of powers conferred under Section 87 (2) of the Information Technology (IT) Act, 2000.Social Media Firms were given three months to implement these new Information Technology Rules by the Government. In 2000, Information Technology was limited to electronic document, e-signature and digital authentication of records. Social Networking Firms arrived in India in 2005. Internet access at home by people of India has increased since 2010 and the cost of data per Gega Byte was also decreased with the introduction of 4G internet.
There is an urgent need to look into this matter so the Government of India has passed new rules under IT Act, 2000 and introduced Section 69A(2), 79(2)(c) and 87 in the Act. New Information Technology(Intermediary Guidelines and Digital Media Ethics
Code) Rules 2021 has replaced the IT Rules, 2011. These new IT Rules, 2021 has directed social media platforms to strictly adhere to the guidelines but currently no social media firm has complied with the IT Rules 2021. AS we all know, every action has a positive and negative aspect and similar is applicable in this instance too. This article gives a bird’s eye view on the New IT Rules 2021, its advantages and glaring ambiguities which appears to be in conflict with the fundamental rights and basic principles of a democratic country.
WHY THERE IS A NEED OF NEW INFORMATION TECHNOLGY RULES, 2021
New Information Technology Rules 2021 is set to empower the ordinary social media users and the main goal of the IT Rules are on the protection of women and children, false spreading of fake news and misuse of social media. Social media has become an integral part of an individual’s life.As we all know that, the engrossment of each individual on these social media platforms have massively increased and thereby lead to the emerging of new challenges like offence against women and children, threat to the security and integrity of the state etc.With such a large user base, tech firms cannot afford to overlook new and developing concerns such as the continuing dissemination of false news, widespread abuse of platforms to post manipulated photos of women, deep fakes, and other content that threatns the dignity of a women and poses a security risk. Since 2020, there are around more than 25000 videos of child sexual abuse content which is circulated on the social media platforms.
In India, there is no regulatory authority to monitor and manage the offensive content on the social media firms and hence, the government decided to put these intermediaries on the same pedestal like Press Code and Program Code under CableTelevision Networks Regulation and Central Film Certification Board.Considering such arising difficulties,In Tehseen S. Poonawalla v/s Union of India case, Supreme Court guided the public authority to control and stop dispersal of explosive messages and recordings on different web-based media stages which tend to induce violence or mob lynching. In 2017, Court saw that the public authority may outline essential rules to stop child pornography, rape and rape images,recordings and sites in content hosting platforms and other applications. So, after considering all the concerns and keeping in mind the Supreme Court directions in case laws, Government implemented New Information Technology Rules, 2021 to get rid of these serious concerns.
OVERVIEW OF NEW INFORMATION TECNOLOGY RULES 2021
Government of India made new guidelines under Information Technology Rules 2021 for social media intermediaries as they believed that it was the need of the hour. The new guidelines are:
* Social Media Divided in two groups on the basis of the number of users i.e.
Social Media Intermediaries (less than 50 lakh users)
Significant Social Media Intermediaries(More than 50 lakh users or 5 million registered users.
Here, Social Media companies are referred as Intermediaries as they create link between the people.
* Due diligence to be followed by the intermediaries to be extra cautious that they allow their user to post on their handle.If social media firms don’t follow this guideline then they end up in loosing their immunity under Safe Harbour Provisions defined in Section 79 of the Information Technology Act. Section 79 of the IT Act function both as an immunity and a restrictive provision for social media companies.
*Social Media firms mandatory appoint a Grievance Redressal Officer who will act as a mediator between Government of India and social media. These grievance officer acknowledge any complain received from the government within 24 hours and resolve it within 15 days from its receipt.
*Social Media firms had to ensure online safety and dignity to the users thereby removing or disable the access of content which exposes the private area of an individual or show some individual in partial or full nudity or some sexual act or si in the nature of impersonation including morphed images within 24 hours of receiving complaint. The complaint can be filed either by an individual or any other person on his/her behalf.
* Social Media Firms should appoint a Chief Compliance Officer, Nodal Contact Person and Resident Grievance Officer and they should be resident of India. Government had instructed the intermediaries to publish new monthly compliance report which contains all the details about complaints received and action taken.
*Government has instructed Significant Social Media Intermediaries to provide information of the first originator in case if the content which is posted threatns the sovereignty and integrity of India, security of the state, disturbs friendly relations with any country, disturbs public order by incite riots, or any kind of offence in relation with rape, sexually explicit material or child sexual abuse material. Social media is bound to give the information of the first originators to Indian Law Enforcement Agencies in these particular cases.
*Government had instructed intermediaries to remove unlawful information upon receiving an court order or being notified from appropriate government if it threatens the sovereignty and integrity of India, security of the state, disturbs friendly relations with any country, disturbs public order by incite riots, or any kind of offence in relation with rape, sexually explicit material or child sexual abuse material.
PROS AND CONS OF IT RULES 2021
The new IT Rules also known as the “Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code )Rules , which was issued by the government contains some advantages & some disadvantages. Let’s discuss them in brief.
IT Rules 2021 curbs the problem which is created by the rapid growth of child pornography, hate speech, spread of misinformation and digital bullying on the platform of Digital World. These rules empowers the government to regulate the uncensored media platforms such as Netflix, Amazon Prime, The Wire, The Print, WhatsApp, Telegram. In order to regulate social media content, the government can ask the platform to disclose the originator of the message as per the new IT Rules. It also removes the bad content and helps people in gaining accurate knowledge through social media and also keeps children away from watching sensitive content which will have negative impact on them. OTT platforms will self-classify contents into five age-based categories: U(Universal), U/A 7+(yrs), U/A 13+, U/A 16+ and A(adult). There will also be parental lock for any content classified as U/A 13+ or above. It provides guidelines for setting up of dispute resolution mechanism for the removal of content. It removes non-consensual intimate pictures within 24 hours and also releases compliance reports to increase transparency.
One of the main disadvantage of new IT Rules 2021 is that it infringes the fundamental right to privacy of many users on social media platform as it allows the intermediaries to break end-to-end encryption of WhatsApp to track the “first originator “of the information whenever asked by the government under Section 69A of the IT Act[Rule 4(2)]. These rules also curtail the fundamental right to free speech of the digital news media because of the involvement of the government. There is excessive control over digital news and OTT content.
NEW IT RULES VIS A VIS ARTICLE 19 OF INDIAN CONSTITUTION
The new IT Rules 2021 was made with aim to protect citizens from cybercrime and digital bullying, but on the contrary rules end up in violating the fundamental right to privacy and freedom of speech and expression guaranteed under Article 19 of the Indian Constitution. After the New IT Rules were passed Government gave a time period of three-months to comply and share the details of the compliance with the new IT Rules. But some social media platforms and digital news entities are against the law as according to them it violates the privacy of the customers and restricts their freedom of speech and expression. And hence, the case was filed against the Government in the Delhi High Court by Whatsapp on the ground that new rules violates the user’s privacy. Some Digital News Media like The Wire, LiveLaw and The Quint also challenged the new Intermediary Guidelines and Digital Media Ethics Code.
Please read concluding on thedailyguardian.com
Whatsapp has raised its serious concern regarding the provision of “traceability”. As per the provision, the social media intermediary is required to identify the “first originator of information” of messages when required to do so by the authorities. For this to be done , the intermediaries will have to break the end-to-end encryption, which in turn weakens the security and privacy of its users.
As per, Sec 3 & Sec 4 of the new IT rules, the intermediaries will have to remove the online content when asked by the government through notice. This will violate the right to free speech under Article 19 of the Indian Constitution, as now the government will regulate all online speech & any discussion against government will be muted.
Twitter has also expressed its concern with regard to the violation of free speech by the new rules. It put forth a condition that if the new rules will be guided by principles of transparency and freedom of expression under the rule of law, then only it will comply with the law.
The new IT Rules 2021 has both the positive and negative impacts on the society. But violating the fundamental right to privacy & freedom of speech can hamper the democracy of the country.
Goyal calls for waiver of IPR and dismantling new trade barriers in the global fight against the pandemic
Piyush Goyal meets Ministers of G 20 to advance India’s trade position and negotiated bilateral and multilateral agreements.
The Union Minister of Commerce & Industry, Consumer Affairs & Food & Public Distribution and Textiles, Shri Piyush Goyal has called for waiver of Intellectual Property Rights (IPR) and dismantling new trade barriers in the global fight against the COVID19 pandemic.
“Our response to the pandemic needs to ensure equitable access to vaccines and other COVID-19 related health products by ensuring quick resolution of the supply side constraints. One of the ways to demonstrate this is by accepting the TRIPS waiver proposal,” Shri Goyal said, in his address to the G20 Trade and Investment Ministerial Meeting in Naples, Italy today.
Goyal called for actively resolving new trade barriers like vaccine differentiations or COVID passports, which impose mobility restrictions and impede the movement of personnel needed for delivering critical services.
“COVID-19 crisis is a powerful reminder of our inter-connectedness, and the need for a coordinated global strategy to overcome such an unprecedented public health situation,” he said.
Goyal underlined the need for an early universal vaccination against Covid19.
“Apart from focusing on facilitating free flow of goods, I invite G20 countries to join in efforts to make health services accessible and more affordable by the citizens of the world by enabling free flow of health services,” he said, adding, “as a quick response to the pandemic, I am happy to inform that our telemedicine initiative “e Sanjeevani”, has been serving millions of Indians. I am happy to offer it to the entire world.”
Calling for an equitable and balanced outcome to the trade negotiations in the Fisheries sector,Goyal advocated that countries engaged in distant water fishing should stop subsidizing their fishing in high seas and gradually reduce their fishing capacities, particularly, for overfished stocks.
“To achieve balanced outcomes in Fisheries Subsidies, policy space for future is a must, not only to protect the livelihoods of poor and marginal fishermen and address, the food security concerns but also to diversify, modernise and develop the fisheries sector, he said.Separately, Shri Goyal also discussed the Agreement on joint multilateral positions in Fisheries etc with his Australian counterpart during a one-to-one meeting yesterday.
In his G20 Ministerial Address, meanwhile, Shri Goyal also said India is committed towards the United Nations 2030 Agenda on Sustainable Development and the Sustainable Development Goals(SDGs).
“India is among the few countries which is on track to exceed its commitments as per the Paris Agreement. We urge the Members to fulfil their commitments regarding Transfer Of Technology and Climate Finance, which are far from being fulfilled by the Developed Countries,” he said.
Goyal said sustainability cannot be seen in isolation and has to be linked to making available grant based, long tenure, low cost and concessional & affordable technologies.
“India has consistently maintained that environmental/sustainability measures need careful assessment to ensure that they do not become new trade barriers and the right forum for them is the dedicated Multilateral Environmental Agreements,” he said.
On Tuesday, it turned out to be a power packed day for Commerce Minister Piyush Goyal on the sidelines of the G20 Trade Ministers Meeting at Sorrento, Italy. He met with nearly 15 Ministers to advance India’s trade position and negotiated bilateral and multilateral agreements. Among the countries and dignitaries met included DG WTO, US, UK, EU, Brazil, China, Australia, South Africa, Indonesia, Canada, South Korea and Mexico.
Goyal unequivocally put forth the position that India is working towards the success of the upcoming WTO 12th Ministerial Conference (WTO MC12) next month but the outcome must be just and equitable. “Historical wrongs against developing countries must be corrected rather than being carried over,” he said.
In his meetings with the Canadian Minister, Goyal discussed steps to take forward the FTA negotiations with the newly elected Government while he called upon his South Korean and EU counterparts to accelerate review of the FTA. With the Mexican Minister, Shri Goyal discussed cooperation in healthcare. Shri Goyal also met with the DG, WTO to discuss the MC12 agenda.
“India has consistently maintained that environmental/sustainability measures need careful assessment to ensure that they do not become new trade barriers and the right forum for them is the dedicated Multilateral Environmental Agreements,” he said.
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