Centre Proposes New Bills for Criminal Law

Introduction

On March 12, the Ministry of Corporate Affairs (MCA) proposed the Bill to curb anti-competitive practices of tech giants through ex-ante regulation. The Draft Digital Competition Bill is to apply to ‘Core Digital Services,’ with the Central Government having the authority to update the list periodically. The proposed list in the Bill encompasses online search engines, online social networking services, video-sharing platforms, interpersonal communications services, operating systems, web browsers, cloud services, advertising services, and online intermediation services. 

The primary highlight of the Digital Competition Law Report created by the Committee on Digital Competition Law presented to the Parliament in the 2nd week of March 2024 involves a recommendation to introduce new legislation called the ‘Digital Competition Act,’ intended to strike a balance between certainty and flexibility. The report identified ten anti-competitive practices relevant to digital enterprises in India. These are anti-steering, platform neutrality/self-preferencing, bundling and tying, data usage (use of non-public data), pricing/ deep discounting, exclusive tie-ups, search and ranking preferencing, restricting third-party applications and finally advertising Policies.

Key Take-Aways: Digital Competition Bill, 2024

1. Qualitative and quantitative criteria for identifying Systematically Significant Digital Enterprises, if it meets any of the specified thresholds. 

• Financial thresholds in each of the immediately preceding three financial years like turnover in India, global turnover, gross merchandise value in India, or global market capitalization.
• User thresholds in each of the immediately preceding 3 financial years in India like the core digital service provided by the enterprise has at least 1 crore end users, or it has at least 10,000 business users.
• The Commission may make the designation based on other factors such as the size and resources of an enterprise, number of business or end users, market structure and size, scale and scope of activities of an enterprise and any other relevant factor.

2. A period of 90 days is provided to notify the CCI of qualification as an SSDE. Additionally, the enterprise must also notify the Commission of other enterprises within the group that are directly or indirectly involved in the provision of Core Digital Services, as Associate Digital Enterprises (ADE) and the qualification shall be for 3 years.
3. It prescribes obligations for SSDEs and their ADEs upon designation. The enterprise must comply with certain obligations regarding Core Digital Services, and non-compliance with the same shall result in penalties. Enterprises must not directly or indirectly prevent or restrict business users or end users from raising any issue of non-compliance with the enterprise’s obligations under the Act. 
4. Avoidance of favouritism in product offerings by SSDE,  its related parties, or third parties for the manufacture and sale of products or provision of services over those offered by third-party business users on the Core Digital Service in any manner.
5. The Commission will be having the same powers as vested to a civil court under the Code of Civil Procedure, 1908 when trying a suit.
6. Penalty for non-compliance without reasonable cause may extend to Rs 1 lakh for each day during which such non-compliance occurs (max. of Rs 10 crore). It may extend to 3 years or with a fine, which may extend to Rs 25 crore or with both. The Commission may also pass an order imposing a penalty on an enterprise (not exceeding 1% of the global turnover) in case it provides incorrect, incomplete, misleading information or fails to provide information. 

Suggestions and Recommendations

• The ex-ante model of regulation needs to be examined for the Indian scenario and studies need to be conducted on it has worked previously in different jurisdictions like the EU. 
• The Bill should be aimed at prioritising the fostering of fair competition by preventing monopolistic practices in digital markets exclusively. A clear distinction from the already existing Competition Act, 2002 in its functioning needs to be created so that there is no overlap in the regulations and double jeopardy is not created for enterprises.
• Restrictions on tying and bundling and data usage have been shown to negatively impact MSMEs that rely significantly on big tech to reduce operational costs and enhance customer outreach.
• Clear definitions of "dominant position" and "anti-competitive behaviour" are essential for effective enforcement in terms of digital competition need to be defined. 
• Encouraging innovation while safeguarding consumer data privacy in consonance with the DPDP Act should be the aim. Promoting interoperability and transparency in algorithms can prevent discriminatory practices. 
• Regular reviews and stakeholder consultations will ensure the law adapts to rapidly evolving technologies. 
• Collaboration with global antitrust bodies which is aimed at enhancing cross-border regulatory coherence and effectiveness.

Conclusion

The need for a competition law that is focused exclusively on Digital Enterprises is the need of the hour and hence the Committee recommended enacting the Digital Competition Act to enable CCI to selectively regulate large digital enterprises. The proposed legislation should be restricted to regulate only those enterprises that have a significant presence and ability to influence the Indian digital market. The impact of the law needs to be restrictive to digital enterprises and it should not encroach upon matters not influenced by the digital arena. India's proposed Digital Competition Bill aims to promote competition and fairness in the digital market by addressing anti-competitive practices and dominant position abuses prevalent in the digital business space. The Ministry of Corporate Affairs has received 41-page public feedback on the draft which is expected to be tabled next year in front of the Parliament. 

References

1. https://www.medianama.com/wp-content/uploads/2024/03/DRAFT-DIGITAL-COMPETITION-BILL-2024.pdf
2. https://prsindia.org/files/policy/policy_committee_reports/Report_Summary-Digital_Competition_Law.pdf
3. https://economictimes.indiatimes.com/tech/startups/meity-meets-india-inc-to-hear-out-digital-competition-law-concerns/articleshow/111091837.cms?from=mdr
4. https://www.mca.gov.in/bin/dms/getdocument?mds=gzGtvSkE3zIVhAuBe2pbow%253D%253D&type=open
5. https://www.barandbench.com/law-firms/view-point/digital-competition-laws-beginning-of-a-new-era
6. https://www.linkedin.com/pulse/policy-explainer-digital-competition-bill-nimisha-srivastava-lhltc/
7. https://www.lexology.com/library/detail.aspx?g=5722a078-1839-4ece-aec9-49336ff53b6c

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Introduction

The Australian Parliament has passed the world’s first legislation regarding a ban on social media for children under 16. This was done citing risks to the mental and physical well-being of children and the need to contain misogynistic influence on them. The debate surrounding the legislation is raging strong, as it is the first proposal of its kind and would set precedence for how other countries can assess their laws regarding children and social media platforms and their priorities. 

The Legislation

Currently trailing an age-verification system (such as biometrics or government identification), the legislation mandates a complete ban on underage children using social media, setting the age limit to 16 or above. Further, the law does not provide exemptions of any kind, be it for pre-existing accounts or parental consent. With federal elections approaching, the law seeks to address parental concerns regarding measures to protect their children from threats lurking on social media platforms. Every step in this regard is being observed with keen interest. 

The Australian Prime Minister, Anthony Albanese, emphasised that the onus of taking responsible steps toward preventing access falls on the social media platforms, absolving parents and their children of the same. Social media platforms like TikTok, X, and Meta Platforms’ Facebook and Instagram all come under the purview of this legislation.

CyberPeace Overview

The issue of a complete age-based ban raises a few concerns:

1. It is challenging to enforce digitally as children might find a way to circumnavigate such restrictions. An example would be the Cinderella Law, formally known as the Shutdown Law, which the Government of South Korea had implemented back in 2011 to reduce online gaming and promote healthy sleeping habits among children. The law mandated the prohibition of access to online gaming for children under the age of 16 between 12 A.M. to 6 A.M. However, a few drawbacks rendered it less effective over time. Children were able to use the login IDs of adults, switch to VPN, and even switch to offline gaming. In addition, parents also felt the government was infringing on the right to privacy and the restrictions were only for online PC games and did not extend to mobile phones. Consequently, the law lost relevance and was repealed in 2021.  
2. The concept of age verification inherently requires collecting more personal data and inadvertently opens up concerns regarding individual privacy. 
3. A ban is likely to reduce the pressure on tech and social media companies to develop and work on areas that would make their services a safe child-friendly environment. 

Conclusion

Social media platforms can opt for an approach that focuses on how to create a safe environment online for children as they continue to deliberate on restrictions. An example of an impactful-yet-balanced step towards the protection of children on social media while respecting privacy is the U.K.'s Age-Appropriate Design Code (UK AADC). It is the U.K.’s implementation of the European Union’s General Data Protection Regulation (GDPR), prepared by the ICO (Information Commissioner's Office), the U.K. data protection regulator. It follows a safety-by-design approach for children. As we move towards a future that is predominantly online, we must continue to strive and create a safe space for children and address issues in innovative ways.

References

1. https://indianexpress.com/article/technology/social/australia-proposes-ban-on-social-media-for-children-under-16-9657544/
2. https://www.thehindu.com/opinion/op-ed/should-children-be-barred-from-social-media/article68661342.ece
3. https://forumias.com/blog/debates-on-whether-children-should-be-banned-from-social-media/
4. https://timesofindia.indiatimes.com/education/news/why-banning-kids-from-social-media-wont-solve-the-youth-mental-health-crisis/articleshow/113328111.cms
5. https://iapp.org/news/a/childrens-privacy-laws-and-freedom-of-expression-lessons-from-the-uk-age-appropriate-design-code
6. https://www.techinasia.com/s-koreas-cinderella-law-finally-growing-up-teens-may-soon-be-able-to-play-online-after-midnight-again
7. https://wp.towson.edu/iajournal/2021/12/13/video-gaming-addiction-a-case-study-of-china-and-south-korea/
8. https://www.dailysabah.com/world/asia-pacific/australia-passes-worlds-1st-total-social-media-ban-for-children

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Executive Summary

The Cockroach Janata Party (CJP) has called for a protest against Chief Election Commissioner Gyanesh Kumar and a “Chalo Delhi” campaign at Jantar Mantar in New Delhi on Saturday, October 10. Meanwhile, a video is being widely shared on social media showing a large number of people carrying saffron flags and walking on a road. The video is being shared with the claim that the people seen in it are members of Hindu organisations marching towards Jantar Mantar in large numbers to oppose the CJP’s proposed protest. CyberPeace Research found that the viral video is old and shows a procession held at Dogra Chowk in Jammu on the occasion of Maharaja Hari Singh’s birth anniversary.

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Claim

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A Facebook user shared the viral video with the caption,“News is coming that Hindu organisations have started a movement called the ‘Catch Cockroach Campaign’. Yes, they have given the campaign this name. A large number of people from Hindu organisations are leaving for Jantar Mantar. Brother Deepak... my free advice is... leave for America, because these are very ‘cruel people’ who can change 500 years of history in five hours... Jai Bhawani, Jai Shivaji, now it’s your turn.”The post link, archive link and screenshot are provided below.

https://www.facebook.com/photo/?fbid=1660133012350967&set=a.536762061354740

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Fact Check

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To verify the claim, we first conducted a reverse image search of a frame from the viral video using Google Lens. Through this search, we found the same video posted on an Instagram page named Rana Ashish Singh on February 21, 2023. However, the post did not provide any information that could help verify the actual origin or context of the video.

https://www.instagram.com/reels/Co61z_zMQr6/

In our further research, we found a higher-quality version of the viral video on the Instagram account ‘@anilgiri4659’, posted in February 2023. On closely analysing the video, we noticed the words “Jai Chandi Maa” written on one of the vehicles, while the number plate of another black vehicle displayed “JK” followed by some digits. We also noticed “Baker’s Avenue” written on the roof of a shop, with a signboard next to it bearing the words “Sport Music” in red. A white building with some black designs painted on it was also visible on the left side of the video. Further into the video, a red-coloured building could be seen. Based on these visual clues, we suspected that the video could be from Jammu and Kashmir.

https://www.instagram.com/reels/CpKOrGkv6SV/

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Using these clues, we carried out a geolocation analysis to identify the location and road visible in the viral video. Our research found that the location shown in the viral video is Dogra Chowk in Prem Nagar, Jammu. To further verify this, a comparative analysis of the visuals from the viral video and the corresponding location can be seen in the graphics below. 

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We also found a clarification issued by the official X account of Bajrang Dal regarding the claim that its workers would gather at Jantar Mantar. The post also described the viral claim as misleading and clarified that there is no such plan from Bajrang Dal. 

https://x.com/BajrangDalOrg/status/2108059565753536897

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Conclusion

CyberPeace Research found that the viral video does not show a protest against Chief Election Commissioner Gyanesh Kumar in Delhi. Instead, it shows a procession at Dogra Chowk in Prem Nagar, Jammu, held in September 2022 on the occasion of Maharaja Hari Singh’s birth anniversary. Therefore, the claim that members of Hindu organisations are marching towards Jantar Mantar to oppose the CJP’s proposed protest is misleading.

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