Welcome to our fortnightly newsletter, where our reporters Harsh Jain and Harshita Lilani put together handpicked stories from the world of tech law! You can find other issues here.
Facebook Oversight Board picks the first batch of cases for review, adds additional matter from India
Facebook’s Oversight Board (OSB), an independent body set up to review moderation decisions by the company, chose 6 cases to review in the first week of December, 2020 from over 20,000 cases that were referred to it following the opening of user appeals in October 20, 2018. Five of the cases being considered by the OSB were referred via user appeals while the sixth arose from a reference by Facebook. A couple of days after announcing the first batch of cases, the OSB added an additional case for consideration from India. It involves a photo posted on a Facebook group with Hindi text describing the drawing a sword from its scabbard in response to “infidels” criticizing the prophet. The photo also included a logo with the words “Indian Muslims” in English. The accompanying text, also in English, includes hashtags calling President Emmanuel Macron of France “the devil” and calling for the boycott of French products.
- FB Oversight Board Picks 6 Cases on Hate Speech, Nudity, Violence, The Quint (December 2, 2020).
- Emily Bell, Facebook’s Oversight Board plays it safe, Columbia Journalism Review (December 3, 2020).
- Aditya Chunduru, Facebook’s Oversight Board picks up an Indian case for review, Medianama (December 4, 2020).
- Casey Newton, Facebook’s new Oversight Board is a wild new experiment in platform governance, The Verge (October 23, 2020).
- Steven Levy, Why Mark Zuckerberg’s Oversight Board May Kill His Political Ad Policy, Wired (January 28, 2020).
Kerala withdraws ordinance criminalizing online defamation amid free speech concerns
The Governor of Kerala passed an ordinance on November 21, 2020, to criminalize online defamation with jail time and or/fines for offenders who publish such content. The ordinance incorporated Section 118A of the Kerala Police Act which makes intimidation, defamation or insulting of any person through social media an offence punishable with imprisonment of term up to three years and/or rupees 10,000 fine. The intent of the ordinance, according to the Kerala government, was to fight online crimes such as cyberstalking. However, amid criticism from opposition political parties and civil society groups regarding the provision’s potential to curb online freedom of speech, the Kerala government announced its decision to issue a fresh ordinance withdrawing the amendment to the Kerala Police Act. It also submitted to the Kerala High Court that no coercive action including registration of FIRs would be taken on the basis of the new amendment.
- N.C. Asthana, Kerala’s Draconian Free Speech Law: How the Left Strayed on the Path of the Right, The Wire.
- Aroon Deep, Kerala passes ordinance to criminalise online defamation and ‘humiliation’, Medianama (November 23, 2020).
- Shrutisagar Yamunan, Why the controversial Kerala ordinance to curb ‘abusive’ posts is bad in law, Scroll (November 23, 2020).
- B.G. Harindranath, 118A OF Kerala Police Act: An Affront On Parrhesia, LiveLaw (November 22, 2020).
Govt. issues new guidelines for Ola and Uber, institutes cap on surge pricing
The Ministry of Road Transport and Highways issued the Motor Vehicle Aggregate Guidelines, 2020 on November 26 under Section 93 of the Motor Vehicles Act (MV Act). The guidelines place significant restrictions on the amount of money aggregators can make through commissions and the imposition of surge pricing. As per the guidelines, drivers will receive at least 80% of the total fare of each ride, with the commission of cab aggregators such as Ola and Uber restricted to a maximum of 20%. The cancellation fee is capped at 10% of the total fare, not exceeding 100 rupees for both drivers and users. Most importantly, aggregators will be allowed to charge a fare 50% lower than the base fare and a maximum surge pricing of 1.5 times the base fare. Various provisions for the welfare of the drivers are also incorporated in the guidelines. The government had amended the MV Act last year, identifying aggregators like Ola and Uber as “digital intermediaries” and giving itself the power to regulate their conduct.
- Soumyarendra Barik, In major move, govt caps commissions, surge pricing charged by Ola, Uber, Medianama (November 27, 2020).
- Alnoor Peermohamed & Aditi Srivastava, New govt rules may narrow earnings of ride-hailing firms like Uber, Ola, The Economic Times.
- Nandana James, Cab aggregators, drivers unhappy with new guidelines, The Hindu Business Line (December 6, 2020).
- Soumyarendra Barik, Motor Vehicles Amendment Bill identifies cab aggregators as ‘digital intermediaries’: gives govt power to regulate them, Medianama (August 1, 2019).
Facebook faced antitrust lawsuit from Federal and State Governments
The Federal Trade Commission sued to break up Facebook, asking a federal court to force the sell-off of assets such as Instagram and WhatsApp as independent businesses. In a lawsuit filed in the Federal Court in Washington, D.C., the Commission alleged that Facebook’s monopoly position arose from its purchase of companies that presented competitive threats and by imposing restrictive policies that unjustifiably hinder actual or potential rivals that Facebook does not or cannot acquire. The lawsuit asks the court to order the “divestiture of assets, divestiture or reconstruction of businesses (including, but not limited to, Instagram and/or WhatsApp),” as well as other possible relief the court might want to add. The announcement is a major step that has been years in the making, with Facebook and several other major U.S. technology companies having grown quickly in the past 10 years with little government oversight.
- Aditya Chunduru, US govt, states hit Facebook with antitrust lawsuit, propose hiving off Instagram, WhatsApp,Medianama (December 10, 2020).
- Nick Statt & Russell Brandom, The FTC is suing Facebook to unwind its acquisitions of Instagram and WhatsApp, The Verge (December 9, 2020).
- Kurt Wagner & Sarah Frier, Antitrust lawsuit: Facebook breakup would demolish Zuckerberg’s tech empire, Business Standard (December 10, 2020).
- Elizabeth Dwoskin, Regulators want to break up Facebook. That’s a technical nightmare, insiders say, The Washington Post (December 11, 2020).
- Matt Stoller & Shaoul Sussman, The US government wants to break up Facebook. Good – it’s long overdue, The Guardian (December 11, 2020).
France’s data protection agency, the National Commission on Informatics and Liberties (CNIL), has slapped Google and Amazon with fines for dropping tracking cookies without consent. Google has been hit with a total of €100 million ($120 million) for dropping cookies on Google.fr and Amazon €35 million ($42 million) for doing so on the Amazon.fr domain under the penalty notices issued. The regulator carried out investigations of the websites over the past year and found tracking cookies were automatically dropped when a user visited the domains, which breaches the country’s Data Protection Act. In Google’s case, the CNIL has found three consent violations related to dropping non-essential cookies, whereas Amazon was found to have committed two violations. CNIL also found that the information about the cookies provided to site visitors was inadequate, as under French (and European) law, information should have been provided to the site users regarding the cookies along with their consent.
- Advait Palepu, French data authority fines Google $120 million, Amazon $42 million for violating cookie consent rules, Medianama (December 10, 2020).
- Stephanie Bodoni, Google, Amazon Fined $163 Million by French Data Watchdog, Bloomberg (December 10).
- Jennifer M. Oliver, Google’s Cookie Conundrum: What’s Essential to Revenue Also Threatens Privacy, The National Law Review (September 7, 2019).
Kazakhstan ramps up control of the internet ahead of the elections
In Kazakhstan, authorities have created and deployed a new online security initiative which may be an attempt to increase government control over the internet ahead of the parliamentary elections that are set to occur in January. The Ministry of Digital Development, Innovation, and Aerospace announced that they were attempting to combat cyberattacks within the country through the implementation of the Cybersecurity Nur Sultan-2020. The new initiative consists of increased use of certificate authority and allows the government to control what sites are allowed access to this feature. The government essentially controls what services an internet user can access. The certificates can also direct users to other websites or record information exchanged between them and their web history. Although they are paraded as combatting man in the middle cyberattacks and heighten security, critics say that the new laws are merely a facade for controlling what content users can access.
- Mariam Kiparoidze, Kazakhstan ramps up control of the internet ahead of elections, The Codastory (December 11, 2020).
- Almaz Kumenov, Kazakhstan: As election beckons, authorities tighten control on internet, Eurasianet (December 7, 2020).
- Katarzyna Szczypska, Silencing Dissent Ahead of Elections in Kazakhstan, The Open Dialogue Foundation (December 11, 2020).