Classifying intermediaries in the upcoming DIA

The present definition of intermediaries was drafted in 2008 at a time when offerings of digital services and platforms weren’t as diversified and nuanced as it is today. Diversification of digital services and the multifaceted roles each intermediary necessitates updated regulatory frameworks and definitions. A nuanced intermediary classification and corresponding regulatory framework, tailored specifically for this context--frameworks that balance user rights, national security interests, innovation, and societal well-being is needed. Clarity in classification will enhance accountability and ensure a safe online environment for Digital Nagriks.

The issue of intermediary classification is not specific to India. Globally, governments have grappled to regulate this sphere. The Model Defamation Amendment Provisions 2022 of the Government of New South Wales defines "digital intermediary" and classifies within its definition services such as social media platforms, electronic messaging services, etc. At the same time, the European Union (EU) under its Digital Services Act uses a definition like the present Indian definition. The key elements are being a mere conduit, caching and hosting. While these approaches are good for the present, India with its futuristic approach needs a much more flexible classification and approach instead of listing down services or key elements. This would help India achieve its endeavour to ensure that law is at least at pace with technology if not ahead.

Towards supporting these objectives of the government, Chase India’s recent report “Proposed Classification of Intermediaries Under the Upcoming Digital India Bill” proposed an intermediary classification mechanism in the report. This framework is based on the nature/ centricity of intermediaries’ functions and aims to align user protection with ease of doing business. Based on this approach, intermediaries have been categorised as: Infrastructure-centric, content-centric, and service-centric.

Infrastructure-centric intermediaries, vital for internet connectivity and functionality, are primarily concerned with the provision of digital infrastructure. Services such as cloud service providers, Internet Service Providers and Data Centres would fall into this category. Some of the safeguards these intermediaries require to consider are such as ensuring non-discriminatory access and adherence to technical standards. They shall be protected from third-party content, claims etc. provided they adhere to their due diligence obligations.

Content-centric intermediaries are those whose services focus on facilitating content creation and sharing such as OTT platforms, social media platforms and video streaming platforms. The obligations on these should focus on prioritising user safety and content moderation, ensuring transparency in algorithmic processes, and enabling identification of the first originator. They are required to publish compliance reports and promptly take down illegal content.

Service-centric intermediaries are those which connect users with services. These would include e-commerce platforms, job search platforms etc. Such service-centric intermediaries should be required to maintain transparency in algorithmic processes, take down illegal content, and enable user verification for accountability.

Content-centric and service-centric should be further designated as either Significant or Non-Significant based on the number of users hosted by the platform, among other considerations. Additionally, Significant content-centric and service-centric intermediaries should be required to appoint a Regulatory Liaison Officer, have physical contact in India, and enable voluntary account verification. Service-centric, infrastructure-centric, and content-centric intermediaries each have distinct roles and regulatory considerations. By understanding these classifications, regulators can develop tailor-made approaches that balance innovation, user protection, and regulatory effectiveness.

The rapid pace of technological evolution and evolving user expectations necessitates a continuous and adaptive discourse within the regulatory framework. It is imperative to recognise the multifaceted roles and responsibilities assumed by intermediaries and strike a delicate equilibrium between fostering innovation and ensuring paramount values such as safety, accountability, transparency, and compliance. A harmonised approach in acknowledging these imperatives will not only sustain the dynamism of the digital landscape but also fortify a regulatory environment that befits the evolving contours of technology and user engagement.

This article is authored by Srishti Saxena, account director and Dhawal Gupta, group business director (Public Policy), Chase India.