Category: Uncategorized

Inclusive FinTech: Bridging the Gap

Posted on by Tech Law Forum NALSAR

[The following post has been authored by Harshita Lilani, a third year student of NALSAR University of Law. This essay is part of an ongoing collaboration between r – TLP and the NALSAR Tech Law Forum Blog and is the fourth post in the series. The first entry can be found here, and the rest of series is available here.]

Financial inclusion and inclusive growth have emerged as one of the main agendas in the past decade as several nations have become aware that sustainable and inclusive growth of all the sections of the society is important for a nation to prosper. By working parallelly with traditional financial institutions like banks, credit unions and insurance companies, Financial Technology or ‘FinTech’, claims to enhance financial inclusion by offering novel products that are better tailored to consumers’ needs at a lower cost. However, a wide ‘FinTech gender gap’ shows that women are significantly less likely to use fintech products or services offered by the fintech entrants than men. This article discusses this gender gap in the FinTech industry and analyses the existing government policies and initiatives that claim to regulate fintech with an aim to bridge this gap. Finally, it highlights the key regulatory and policy changes that are required to create an enabling environment for financial inclusion in India.

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Facial Recognition and Data Protection: A Comparative Analysis of laws in India and the EU (Part I)

Posted on by Tech Law Forum NALSAR

[This two-part post has been authored by Riddhi Bang and Prerna Sengupta, second year students at NALSAR University of Law, Hyderabad. Part II can be found here]

With the wave of machine learning and technological development, a new system that has arrived is the Facial Recognition Technology (FRT). From invention to accessibility, this technology has grown in the past few years. Facial recognition comes under the aegis of biometric data which includes distinctive physical characteristics or personal traits of a person that can be used to verify the individual. FRT primarily works through pattern recognition technology which detects and extracts patterns from data and matches it with patterns stored in a database by creating a biometric ‘template’. This technology is being increasingly deployed, especially by law enforcement agencies and thus raises major privacy concerns. This technology also attracts controversy due to potential data leaks and various inaccuracies. In fact, in 2020, a UK Court of Appeal ruled that facial recognition technology employed by law enforcement agencies, such as the police, was a violation of human rights because there was “too broad a discretion” given to police officers in implementing the technology. It is argued that despite the multifarious purposes that this technology purports to serve, its use must be regulated.

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Algorithm Based Systems and the State: A Brief Inquiry

Posted on by Tech Law Forum NALSAR

[Ed Note: The following post is part of the TLF Editorial Board Test 2020-21. It has been authored by Harsh Tripathi, a second year student of NALSAR University of Law.]

Picture this: A computer software, running on AI-based algorithms, has been deployed to scrutinize housing applications. However, the applications filed by the members of a particular community or people with a particular sexual identity are constantly rejected while most allocations are being made to the members of a different community. 

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Managing Regulatory Turbulence: Of Privacy, Consent and Drones

Posted on by Tech Law Forum @ NALSAR

[Samraat Basu is a technology and data protection lawyer and Naveen Jain is a corporate lawyer specialising in M&A and PE/VC funding.]

The Indian regulatory landscape regarding the use of remotely piloted and autonomous drones has been evolving over the last few years. In June, the Government of India released the draft Unmanned Aircraft System Rules, 2020 (“UAS Rules”) to regulate the use of drones.

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A Letter to MeitY

Posted on by Tech Law Forum @ NALSAR

In a recent decision, the Government of India banned 59 Chinese Applications under Section 69A of the Information Technology Act, 2000 read with relevant provisions of the Information Technology (Procedure and Safeguards for Blocking of Access of Information by Public) Rules 2009. This ban was imposed as an interim measure on the ground that the concerned applications were “engaged in activities which are prejudicial to the sovereignty and integrity of India, defence of India, security of state and public order.” In lieu of this imposition, the Technology Law Forum of NALSAR University of Law (“Forum”) authored a letter to Shri Ajay Prakash Sawhney (Secretary, Ministry of Electronics and Information Technology) on 6 July 2020, expressing concerns and seeking clarifications about the ban. 

Firstly, the Forum asserted that the power under Section 69A of the Information Technology Act and its corresponding Rules is meant to be exercised for imposing content-based restrictions on the internet, and not for sweeping bans on entire applications. Secondly, the Forum pointed out that the Government had failed to make public a reasoned order justifying how the ban was reasonable and proportionate under Article 19 of the Constitution. Thirdly, the Forum noted that while some of the banned applications like TikTok and Weibo did have data protection and privacy concerns, others like Kwai did not have any such concerns or history of data leaks. To this end, it noted that a sweeping ban was arbitrary, more so in the absence of any data protection law supporting it. Fourthly, the Forum called upon the Government to clarify whether the ban was imposed under the exception framework of the GATT or the GATS, and to demonstrate how this ban was non-discriminatory under international law. Lastly, the Forum pointed out that many of the banned applications such as TikTok and Kwai were extremely popular in India’s semi-urban and rural areas, serving as a much-needed outlet of self-expression and source of income for marginalised communities. Accordingly, the Forum requested the Ministry of Electronics and Information Technology to consult with deprived user-stakeholders before arriving at the final decision. 

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Assessing India’s Obsession with Data Localization: Concerns of Jurisdiction

Posted on by Tech Law Forum @ NALSAR

[This post has been authored by Prashant Khurana, LL.M. Graduate (Class of 2020) from the UCLA School of Law and Founding Editor at Polemics and Pedantics Magazine, and Parth Maniktala, LL.B. Candidate (Class of 2021) at the Campus Law Center, University of Delhi, and Editor at Polemics and Pedantics Magazine.]

COVID-19 has spawned efforts geared towards contact-tracing, triggering collection and processing of sensitive personal data across the world. Legal protections surrounding this large-scale data collection are predominantly nascent, raising significant concerns about the precedent this sets for data privacy. In India, the Supreme Court’s landmark Puttaswamy judgement recognized privacy as intrinsic to the right to life and liberty, as secured by Article 21 of the Constitution. However, the Court conceded that privacy may be abridged if a legitimate interest, say, an epidemic, exists—provided the doctrine of ‘proportionality’ is satisfied. Notably, India’s controversial data protection legislation is yet to be enacted, and in its absence, judicial pronouncements govern. 

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Welcoming The Era of Technology Friendly Laws in India

Posted on by Tech Law Forum @ NALSAR

This brief introduction to regulation of autonomous vehicles has been authored by Khushi Sharma and Aarushi Kapoor, second year students of Hidayatullah National Law University (HNLU), Raipur. [Ed. Note: This article was written before the 2019 Personal Data Protection Bill had been made public. Click here for the new Bill.]

India being the 7th largest manufacturer of commercial vehicles in the year 2017-18, coupled with its automobile sector which is the 4th largest in the world, are key factors driving India’s economic growth. Technological advancement is both a cause and effect of this growth. Innovative minds rule India and the world today to such an unimaginable extent that the very idea of acar running by itself with onejust sitting back and relaxing, now seems a reality. The debut of driverless vehicles in India was at Defexpo 2016 in New Delhi where Novus Drive, a driverless shuttle was introduced. However, a recurring question is ‘Are we really ready yet?’

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Is Embedding a YouTube Video Legal?

Posted on by Tech Law Forum @ NALSAR

This piece has been authored by Jubin Jay, a final year student at National Law University, Odisha (NLUO). 

A lot of people use YouTube videos to enhance their online articles or webpages. Some provide a regular link to the YouTube video while some provide with an embedded link of the same.  While embedding, the video itself appears on the webpage and the user is not redirected to YouTube, in contrast to the previous case, where it only appeared as a link. Now, this is problematic because someone else’s video appears on one’s own webpage. A lot of people argue that this is similar to using someone else’s work for your gain without their permission, amounting to a copyright violation. However, there is ambiguity and a lot of questions are yet to be answered in such cases to prove an infringement. So, the broader question remains, is embedding a YouTube video legal?

Section 6 (c) of YouTube’s official terms of service reads:

“by submitting Content to YouTube, you hereby grant YouTube a worldwide, non-exclusive, royalty-free, sublicensable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the content in connection with the service and YouTube’s (and it’s successors’ and affiliates’) business, including without limitation for promoting and redistributing part or all of the Service (and derivative works thereof) in any media formats and through any media channels. You also hereby grant each user of the service a non-exclusive license to access your Content through the Service, and to use, reproduce, distribute, display and perform such Content as permitted through the functionality of the service and under these Terms of Service.”

The most significant part in the aforementioned terms is that the owner of the video grants every YouTube user a license to access his content, and to use, reproduce, distribute, display, and perform such content as permitted through the functionality of YouTube and its terms of service. In other words, when any owner uploads his video, he has an option to either enable or disable embedding, and since by choosing to leave it enabled, he grants the user a limited license to embed the video.

Based on the Terms of Service as discussed above, one can ideally conclude that if there is an option in the video to embed, then there is nothing illegal in embedding such a video. However, the phenomena of embedding too comes with some conditions and restrictions attached to it. Section 4 (f) of the Terms of Service states, “If you use the Embeddable Player on your website, you may not modify, build upon, or block any portion or functionality of the Embeddable Player, including but not limited to links back to the YouTube website.”

Put simply, an embeddable player is made available on one’s webpage by inserting a code to a website, linking to a video that’s hosted at another location, and surfacing a video player without using any resources from the website itself. However, post this if there is any modification made to the embeddable player as had been generated, Section 4 (f) of the Terms of Service will be attracted. Such conditions and restrictions attached to embedding, can be better understood in light of the observations made by the courts of U.S. and EU in the cases discussed below.

In Flava Works, Inc. v. Gunter the Seventh Circuit Appellate District faced a situation where members of an adult site were listing videos from the paid area of the site on a separate social media bookmarking site. The bookmarking site would then create a video preview with the embedded code. The Court however found that no copy was being made by the social media bookmarking site, thereby resulting in the termination of the infringement claim. Put more succinctly; merely embedding the video on your site does not give rise to liability.

Further, in Perfect 10 v. Amazon the Ninth Circuit made it clear that in situations where just in-line links are concerned, there is absolutely no direct copyright infringement liability.

The ECJ however brought a new dimension to the question of infringement. In BestWater International GmbH v Michael Mebes it was held that that as long as the embedding doesn’t make the video available to new audiences, there is no infringement. In this case, the water filter ad in question had already been available to the entire internet on YouTube, so the court observed that merely embedding it didn’t make it available to any new audiences that previously didn’t have access to it. In conclusion, it does not constitute a public communication within the meaning of Article 3 (1) of the Information Society Directive as it does not appeal to a new public.

However, all of the above cases fail to address a situation when there is embedding of a video which is already infringing. Could this amount to contributory infringement by aiding and abetting?

Judge Posner in the Flava Works Case observes, “myVidster (the defendant) is not an infringer, at least in the form of copying or distributing copies of copyrighted work. The infringers are the uploaders of copyrighted work. There is no evidence that myVidster is encouraging them, which would make it a contributory infringer. If myVidster encouraged or induced that party to upload the infringing video, it would be a contributory infringer to that infringement. But users of myVidster who thereafter merely stream that infringing video are not infringers of the reproduction or distribution rights since they have made no copies.”

The observation made above does seem satisfactory to an extent, however, is very situational in nature as there was no evidence that someone actually made a copy using the link provided. Had users copied the infringing video using the link, the observation made by Judge Posner could have been different. To conclude, proving infringement in cases where a YouTube video has been embedded will depend, for the most part, on the factual situation concerned and will vary from case to case. As technology keeps evolving with time, there can never be a strait jacket formula for proving infringement. In any event, with regard to the question we have raised presently, yes, embedding a YouTube video is legal, as long as the video being embedded is not an infringing video in itself.

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Shreya Singhal, and how Intermediaries are simply Intermediaries Once Again – Striking down the Chilling Effect

Posted on by Kartik Chawla

The concept of ‘intermediary liability’ in all its nuances, as I have written before, is one of the bulwarks of the internet as we know it, including one of the aspects of it that we all know and love – the power it gives to each and every individual to exercise their right to free speech. In fact, it is that very power that even I am exercising right now as a blogger, even as part of an academic institution. This post looks into the Shreya Singhal and Ors. v. Union of India judgment, the contentions raised therein by intermediaries, and the consequences it has for intermediaries and internet-users alike. We will be looking at the Section 69A issues in a separate post.

Intermediary Liability is quite fragile and multifaceted a concept, balancing multiple interests on multiple fronts. To name the broadest stakeholders, intermediary liability balances the rights of the users (of the internet), against the profit incentives of the intermediary, and the policing of the government. An extremely interesting instance of the last part of this can be seen in the 2013 House of Lords’ Select Committee on Communications’ Report on Media Convergence. As per the report, the Committee essentially states that the best way for regulating content on the internet is through the intermediaries alone.

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