A student-run group at NALSAR University of Law
[Ed Note: The following post is part of the TLF Editorial Board Test 2020-21. It has been authored by Sankalp Jain, a fourth year student of NALSAR University of Law.]
This post discusses policy responses to the threat of automation on India’s labour, contextualising the same amidst a major technological shift and efforts to revive India’s economy after a nation-wide lockdown crippled it.
[Ed Note: The following post is part of the TLF Editorial Board Test 2020-21. It has been authored by Yashashwini Santuka, a second year student of NALSAR University of Law.]
Advanced systems of healthcare are imperative to the growth of countries, their economies and the well-being of its people. However, developing countries like India are still in the process of adapting to emerging technology in public healthcare due to its resource-constrained setting. The use of Artificial Intelligence (AI) in this scenario is rapidly spreading in public health. Effective deployment and adapting to its unique features to transform public health completely might take longer due to the systemic disparities observed in the country. While AI holds promise for the health systems, its uniform implementation may pose an issue to traditional patient care systems, patients’ safety, safety of their private medical records, and affordability. Such a situation requires regulators to take a systemic view of the healthcare industry, and possibly pre-empt the potential impact of the use and regulation of AI. This article explores the contextual limitations of the healthcare industry in India concerning the regulation of technology and AI.
[This post has been authored by Vaibhav Parikh, Legal Counsel at ICICI Bank. Views are personal]
The value of online/ mobile banking rose from INR 69.47 billion in 2016-17 to INR 21,317 billion in 2019-20. Providing data access to third-party firms by banks and other financial institutions has proved to be one of the important reasons for such rapid development in online/ mobile banking, since it has allowed for introduction of innovative financial services and products to customers (Basel Committee Report on Open Banking, Page 8); such as seamless payments transmission between accounts at different banks, instant payments using Unified Payments Interface (“UPI”) and aggregation of all financial accounts onto one dashboard. Gradually, the delivery of financial services and products is also being offered by non-banking third parties, such as fintech firms. These developments are aspects of open banking and are continuously evolving in nature.
[This is the second part of a two-part post authored by Abhilash Roy and Hrishikesh Bhise, fourth-year students at the National Law Institute University, Bhopal. Click here for Part I]
Argument for a Level Playing Field
‘Fair and reasonable opportunities to all market players’ and the concept of ‘a level playing field’ for market participants is important for a regulatory framework. A good regulatory framework is designed to induce confidence in the market and stems from necessity, more so, the imperativeness that positive competition practices in the market thrive and ensure opportunities to all participants without indirectly favouring a specific section of the market. It is evident that absence of a regulatory framework for OTT services is fostering poor competitive environment. For example, massive digital ad-revenue and the power/outreach of internet has facilitated the growth of OTT companies as giants in the industry and gives them an advantage over TSPs with respect to similar services such as messages and VoIP, among other things such as lack of a digital ad-revenue space for TSPs. However, there is ample evidence to suggest that telecom industry is not a ‘victim’ in a clinical sense as TSPs still charge customers for data consumption for using OTT services and an increase in these services results in increased data consumption which then translates to increased revenue for telecom companies. Any regulatory framework would have to be formulated by keeping in mind the revenue model of both stakeholders.
[This is the first part of a two-part post authored by Abhilash Roy and Hrishikesh Bhise, fourth-year students at the National Law Institute University, Bhopal. Click here for Part II ]
The purposes and functions of the internet, as we know it today, have grown manifolds since its inception over thirty years ago. Its importance and use has only grown due to the ongoing pandemic with an estimated 50 to 70% more hits.
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.
The Cabinet Secretariat issued a notification on November 11, 2020 granting the Ministry of Information and Broadcasting authority over streaming platforms and online news portals. Simply put, this means that platforms such as Netflix, Hotstar, Amazon Prime, etc. will now be under the jurisdiction of the I&B Ministry. While the I&B Ministry cannot regulate these platforms without specific laws being passed towards that end, the notification signals the intent of the government to bring out a regulatory code in the near future. Such a move was expected after Amit Khare, the Secretary of the I&B Ministry, expressed the Ministry’s intent to bring content streamed over OTT platforms under its purview. The online content sector, unlike radio, cinema and television, has till now remained free of censorship. In August 2020, more than a dozen OTT platforms operating in India such as Netflix, Zee5, Voot, Jio, SonyLiv, etc. had signed a self-regulation code aimed at empowering consumers with tools to assist them in making informed choice with regard to viewing decisions for them and their families but the I&B Ministry had refused to support the same.
[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.
[Ed Note: The following post is part of the TLF Editorial Board Test 2020-21. It has been authored by Saumya Khandelwal, a second year student of NALSAR University of Law.]
Recently, a report on the ‘Non-Personal Data Governance Framework’ was released by an expert committee established by Ministry of Electronics and Information Technology (MeitY) for recommending a framework to regulate Non-Personal Data (‘NPD’). NPD is electronic information that cannot be traced back to an identifiable natural person (learn more about what is data governance here). The committee, believing in the huge potential of data, strove to create a framework to unlock the economic, social and public value of data. One of the objectives of the report is to wipe out the possibility of data monopolies. It aims to create certainty and incentives for innovation to encourage domestic start-ups, spurring digital economy growth. The recommended framework: enabling start-ups/businesses to access meta-data of data-driven businesses and building data marketplaces for easy exchange of data seeks to provide a level-playing field for all Indian actors. The goal of this article would be to show how the draft framework in its present form cannot achieve the aforementioned objective.
[This post has been authored by Raashi Vaishya, a fourth year student at the NMIMS Kirit P. Mehta School of Law, Mumbai.]
The sentiment of intermediary liability in India can be felt from the dialogue that transpired between Cleopatra and the messenger who informed her about Antony’s marriage. When Cleopatra threatened to treat the messenger’s eyes as balls, he replied, “Gracious madam, I that do bring the news made not the match.”[1]
The previous post analysed the laws applicable to e-pharmacies in India. The present post looks at the draft e-pharmacy rules and its implications and suggests ways to ensure the smooth application of the law in India.
On August 28, 2018, the government came out with the Sale of Drugs by E-Pharmacy (Draft Rules) for regulating the sale of drugs through e-pharmacies. These Rules aim to put in place an extensive regulatory regime for e-pharmacies and are important in light of the concerns that e-pharmacies pose. Given below are the salient features of the Rules:
Firstly, it will fill the regulation gap that currently exists and will put into place a robust framework to deal with e-pharmacies. Existing laws are inadequate when it comes to addressing the requirements of e-pharmacies, however, the Rules will resolve the issue and prevent misuse of medicines and data.
Secondly, sales of conventional brick and mortar outlets will be adversely affected due to competitive pricing offered by e-pharmacies. Conventional stores may fail to compete with online pharmacies which provide substantial discounts as a result of which offline stores will suffer due to loss of business.
Thirdly, the question of jurisdictional conflicts remains unaddressed as it remains to be seen which law holds the field in case of legal inconsistencies. Several inconsistencies may be spotted in the Draft Rules which need to be resolved if a solution to this issue is to be found.
Privacy forms an important concern for consumers. There need to be adequate safeguards regarding how the data given by a customer is protected and this warrants heavy regulatory compliances in addition to strict penalties in cases of violations. The recent Aadhar judgment also brought to light numerous concerns regarding privacy which need to be kept in mind when implementing a regulatory framework for e-pharmacies.
The Draft Rules prescribe that e-pharmacies would keep data confidential and localized, however, state and central governments can secure access to the data for “public health purposes”. No criterion is prescribed for what would constitute such a purpose and the Rules also fail to mention which authority can compel e-pharmacies to share health information. Such ambiguities pose a threat of misuse of data by government.
Further, the Draft Rules come in direct conflict with the draft of the Personal Data Protection Bill, 2018, which allows for the transfer of data outside India where the patient has expressed his/her consent or where the transfer is necessary for prompt action. The conflict between the two needs to be resolved before the Draft Rules can be implemented.
In conclusion, it can be said that the e-pharmacy regime is changing slowly but steadily. The government has taken cognizance of the fact that there are many health concerns surrounding the sale of medicines online and accordingly has formulated a policy which address these concerns. India is taking a step forward in terms of drafting a full-fledged policy exclusively for e-pharmacies; this is sure to make the lives of a lot of citizens easier.
There is no doubt that the proposed Rules are progressive in nature. By making regulations that stand in conformity with global best practices the government is providing impetus to the continued growth of the e-pharmacy industry. However, there exist issues that need to be resolved sooner rather than later, such as the tendency of the government to misuse data and the conflicting nature of its provisions with those of the IT Act, 2000.
India has a long way to go in governing e-pharmacies and there are a lot of loopholes that need to be plugged. Currently, there is no law governing the actions of drug companies and as a result they are operating with little regard to the consequences of their actions. There is a need to bring the Rules into force as quickly as possible, and despite the government’s promise to implement them within 100 days of the elections they are yet to act in this matter.
It is hoped that concerns about consumer privacy are addressed in a more stringent manner by the government and that provisions are put in place which ensure that misuse of the data of the customers is strictly prohibited. The government should address loopholes in the policy and examine how they come into conflict with existing rules and amend them to resolve such contentious issues.