Europe’s Digital Services Act validates India’s approach to Big Tech, say experts

The European Union (EU)’s new Digital Services Act (DSA), aimed at establishing central regulations for Big Tech, could validate the Indian government’s approach towards tech laws, say experts. Some of the rules set by the DSA are similar to those in India’s Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, also known as the IT Rules, 2021, they pointed out.

On April 23, EU member states agreed on a set of regulations to control Big Tech. The DSA is a new set of laws that seek to regulate how Google, Facebook and Amazon target advertisements towards users, based on parameters like religion or race, and adopt stricter ways to cut down on hate speech or child abuse material on platforms.

N.S. Nappinai, an advocate at the Supreme Court of India and founder of Cyber Saathi Foundation, said that the DSA can help set the pace for other countries in “codifying accountability and liability of social media platforms.” She added that with the IT Rules, India has already sought for a “more responsible social media” – something that the DSA can now make mandatory at a global scale.

Further, tech policy analyst Prasanto K. Roy, said that the DSA is “both a precedent and validation of India’s own rules governing social media intermediaries and limiting their safe harbour protection.”

In India, the IT Rules, 2021 made it mandatory for ‘significant’ social media intermediaries, or online platforms with over 5 million registered users in India, to appoint a grievance redressal officer. The latter is required to acknowledge a user’s grievance within 24 hours of receipt of the complaint, and offer a resolution to it within the next 15 days.

The EU’s DSA seeks to establish a similar practice, where users of very large online platforms (VLOPs) – with more than 45 million registered EU users – will be able to challenge content moderation decisions made by the platforms. They will also be able to take legal recourse, through courts, against decisions made by such tech platforms.

Other similarities include ensuring fairness of recommendation algorithms used by social media platforms. 

In December 2021, recommendations on India’s upcoming Data Protection Bill made by a joint parliamentary committee stated that online platforms would be required to ensure transparency and ‘fairness’ of algorithms that are used to process personal user data. The DSA seeks to establish transparency measures so that platforms have to explain decisions where algorithms are used for “recommending content or products to users.”

To be sure, companies such as Google and Facebook already publish transparency reports on how they react to government requests for data removal on their platform around the world voluntarily. However, many industry observers have often labelled self-regulatory efforts of tech companies to be inadequate. For instance, in a blog post in June 2021, Samir Saran, president of the Observer Research Foundation (ORF), a Delhi-based think-tank, wrote that self-regulation has so far “allowed Big Tech to cherry pick what is to be acted on and what is to be ignored, effectively making it the arbiter of permissible speech.”

Nappinai concurred, stating that regulations such as the DSA “was brought upon by social media itself – through its resistance to transparency and accountability.”

That said, Alok P. Kumar, co-founder of Vidhi Centre for Legal Policy, warned that selective enforcement may continue despite such mandates. “If the regulatory enforcement is not neutral and you are going to selectively pick up content, compliance will not be a problem – the company would not have to comply with the law, but only with the government's demands. Even if any legal changes are made in Indian laws based on DSA, it won’t matter much if the enforcement is selective,” he said.

Nappinai said that even if the EU’s DSA lends precedent to India, the latter’s implementation needs to be careful. “India has to ensure that the formulation of its social media laws is not blind adaptation,” she said.