Digital India Act: What To Expect And What Not To?

27th July, 2023 - 1:35 pm Categories: Data Protection Technology 0 Comments

Introduction

The landscape of data protection, technology, social media platforms, intermediaries, artificial intelligence and other concerning ancillary fields are dynamically oscillating to and fro that is making the legislators and interpreters of legislations think over the novice challenges that not only masses at large are facing but coming to the courts that even the Hon’ble Courts are failing to settle and dispense justice, quite a few times. First, it was observed that the existing, more than two-decade old – Information Technology Act, 2000 is failing to cater to the Data Protection of citizens.[i] As a consequence of this, Justice BN Srikrishna Committee was formed in July 2018.[ii] Thereafter based on the said Committee’s recommendations, the Legislature came up with the Personal Data Protection Bill, 2019 (‘PDPB’),[iii] which faced huge criticism and was sent to a Joint Parliamentary Committee that submitted its report in December 2021. However, the Central Government withdrew the said Bill in August 2022 from Parliament. Later on, in November 2022, it came up with the Draft Digital Personal Data Protection Bill, 2022 (‘DPDB’) for public feedback.[iv]

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Considering the developing technological advancements, the Information Technology Act, 2000 (“IT Act”) is becoming a cliché law unable to cater to the current legal requirements, the Central Government through the Ministry of Electronic and Information Technology came up with a presentation on the Digital India Act, 2023 (hereinafter as “DIA”).[v] Prior to this, the Draft Bill of the said Act was supposed to be released in April 2023.[vi] However, the same was delayed and now it is being stated by media reports that it is likely to be released by the end of July.[vii]

Key Components Of Dia

As per the Government’s presentation,[viii] the DIA would work in tandem with the Digital Personal Data Protection Bill, which is yet to be passed, DIA Rules, Indian Penal Code being amended to include Cybercrimes, and National Data Governance Policy, yet to be released. It would be inclusive of the Objectives of Global Standard Cyber Laws,[ix] thereby it would ensure Open, Safe and Trusted Internet and act as a catalyst in growth of technology and innovation in digital ecosystem in India. It would also provide for the protection of citizen rights and address the risks concerning growing technologies. It is said by the Government that the Act would be Future-proof and Future-ready.

The new Adjudicatory mechanism that is likely to be proposed by the DIA shall be easily accessible, ensure delivery of remedies to the citizens in a time-bound manner, resolve the cyber disputes by developing a unified cyber jurisprudence and enforce the rule of law in the online environment.

Apart from the aforesaid components, the DIA would lay a major stress of following points:

1. Open Internet

DIA would emphasise on the Open Internet with an attempt to extend the ease of doing business and compliance in the legal landscape in India by providing choice to consumers, digitally promoting competition, diversifying the online ecosystem, and facilitating the access to online market to new entities and start-ups. The enactment would ensure fair trade practices through Open Internet by ensuring the prevention of concentration of market powers and regulating domination by Ad-tech platforms, App Stores, etc. It would also promote innovation and development in emerging technologies such as Artificial Intelligence, Machine Learning, Internet-of-things, and other such technologies.

2. Online Safety and Trust

The objective of DIA is to safeguard the internet users in India by implementing measures against various forms of online harm such as criminalising offenses for actions committed online in the form of cyber-flashing, revenge porn, offenses targeting specific groups (such as women, physically-disabled, etc.), cyber-bullying, doxing, and salami-slicing attacks. To protect children, the DIA would come up with an Age-gating that would regulate the addictive tech by restricting the certain sections of the internet for minors. It shall also restrict the platforms that collect children’s data, breach their privacy and cause concerns, and targeted advertising so that the children might fell prey to them (which is also covered in the DPDP Bill). All these measures shall be enunciated by the DIA so as to safeguard the privacy of children exploiting internet.

Furthermore, digital user rights that were once provided in the Personal Data Protection Bill, 2019 would be expanded in the present Act in order to include the right to be forgotten (although this right has been excluded from the recent version of the DPDP Bill), the right to secure electronic means, the right to seek redressal, the right to digital inheritance (an expanded version of the right to nominate), rights against discrimination, and rights pertaining to automated decision making, etc. There can be other rights as well that can be included under this head to fulfil the objective of Online Safety and Trust.

One of the major attempts of the DIA is to prevent the dissemination of fake news through social media platforms. To address this issue of deceiving false online content and fake news, a moderation would be set up across social media platforms, websites, and other online forums. Abiding by Article 19(1)(a) (freedom of expression),[x] the DIA would ensure moderation of fake news and false online content by critically examining the news published.

The DIA would provide for quality testing frameworks, algorithmic accountability, threat and vulnerability assessments, and content moderation so as to efficiently regulate the High-risk AI systems. The Government is to take measures to strengthen cyber resilience by empowering agencies like the Indian Computer Emergency Response Team (CERT-IN) to issue advisories on information and data security practices and impose stricter penalties for non-compliance.

In addition to the aforesaid provisions, to ensure Online Safety and Trust among the masses, DIA will introduce the regulations that would govern privacy-invasive devices such as spy cameras, wearable technologies, and other hardware. Lastly, the DIA also aims to bring into effect content monetization rules,[xi] which would monetise the online content in the place for user-generated and platform-generated content.

3. Accountable Internet

DIA also seeks to provide for an accountable internet through Adjudicatory and Appellate Mechanisms, updated intermediary framework, and algorithmic transparency and periodic risk assessments. Internet shall be made accountable by the legislation so that the Constitution ethos inscribed under Articles 14, 19 and 21 remain upheld.[xii] It would also provide for disclosure norms to the Data Intermediaries. As per those norms, the intermediaries will be required to disclose the collected data, if collected above prescribed threshold. The enactment would formulate a dedicated inquiry agency and specialised Dispute Resolution/Adjudication framework.

CONCLUSION

The presentation released by the Ministry is luring enough making our expectation from DIA higher. The IT Act is the grundnorm governing whole legal industry of India pertaining to cyber law, technological advancements, and telecommunications. The IT Act will be repealed by the proposed Digital India Act, which is notable in its structure. It is crucial to expedite its implementation as a law, alongside a robust data protection legislation. In today’s extensively digitised realm, where individuals, machines, financial institutions, businesses, and governmental organizations are interconnected through a unified network, the significance of regulations governing digital practices and safeguarding personal data cannot be overstated.

Author: Kaustubh Kumar is a fourth-year law student at the National University of Study and Research in Law, Ranchi, in case of any queries please contact/write back to us via email to chhavi@khuranaandkhurana.com or at Khurana & Khurana, Advocates and IP Attorney.

REFERENCES

[i] https://eprocure.gov.in/cppp/rulesandprocs/kbadqkdlcswfjdelrquehwuxcfmijmuixngudufgbuubgubfugbububjxcgfvsbdihbgfGhdfgFHytyhRtMjk4NzY=

[ii] https://prsindia.org/billtrack/draft-the-digital-personal-data-protection-bill-2022

[iii] http://164.100.47.4/BillsTexts/LSBillTexts/Asintroduced/373_2019_LS_Eng.pdf

[iv] https://www.meity.gov.in/writereaddata/files/The%20Digital%20Personal%20Data%20Protection%20Bill%2C%202022.pdf

[v] https://www.meity.gov.in/writereaddata/files/DIA_Presentation%2009.03.2023%20Final.pdf

[vi] https://www.financialexpress.com/life/technology-rules-for-invasive-gadgets-likely-under-digital-india-act-draft-to-come-in-april-chandrasekhar-3004065/

[vii] https://economictimes.indiatimes.com/tech/technology/government-looks-to-release-digital-india-act-first-draft-by-the-end-of-july/articleshow/99893888.cms

[viii] https://www.meity.gov.in/writereaddata/files/DIA_Presentation%2009.03.2023%20Final.pdf

[ix] https://www.bsigroup.com/en-GB/Cyber-Security/Standards-for-IT-and-cyber-security/

[x] https://www.constitutionofindia.net/articles/article-19-protection-of-certain-rights-regarding-freedom-of-speech-etc/

[xi] https://www.tintup.com/blog/user-generated-content-monetization/

[xii] https://www.indiacode.nic.in/bitstream/123456789/15240/1/constitution_of_india.pdf