Comments on the “Draft Omnibus Framework for Recognizing Self-Regulatory Organisations (SROs) for Regulated Entities (REs) of the Reserve Bank of India”

The Reserve Bank of India (RBI) released the Draft Omnibus Framework for recognizing Self- Regulatory Organisations for Regulated Entities of the Reserve Bank of India (Draft Framework) for public comments on December 21, 2023. The Esya Centre is pleased to be afforded an opportunity to respond to the Draft Regulations. Our response is divided into two parts. Part I provides a preliminary overview of our response and Part II delves deeper into specific aspects of the regulations, such as the need for precise definitions of regulated entity categories, clarity on the number of self-regulatory organisations per category, necessity of defined timelines for RBI decisions, and the inclusion of civil society organisations in the framework's functioning.

Attribution: Comments on the “Draft Omnibus Framework for Recognizing Self-Regulatory Organisations (SROs) for Regulated Entities (REs) of the Reserve Bank of India”. Issue No. 114, January 2024, Esya Centre.

Response to the Public Consultation on “The Competition Commission of India (Determination of Turnover and Income) Regulations, 2023”

The Competition Commission of India (CCI) opened public consultations on the Draft (Determination of Turnover and Income) Regulations, 2023 (“Draft Regulations”) on December 22, 2023. The Esya Centre is pleased to be afforded an opportunity to respond to the Draft Regulations. The Draft Regulations clarify how turnover and income are to be determined for calculating penalties for anti-competitive agreements (s.3) and abuse of dominant position (s.4) under s. 27 of the Competition Act, 2002, or contraventions of the Act under s. 48. The response is divided into two parts, with Part I providing a general overview and Part II delving deeper into each submission.

Attribution: Response to the Public Consultation on “The Competition Commission of India (Determination of Turnover and Income) Regulations, 2023”. Issue No. 113, January 2024, Esya Centre.

Response to the Draft Broadcasting Services (Regulation) Bill 2023

Description: The Ministry of Information and Broadcasting (MIB) initiated public consultations for the Draft Broadcasting Services (Regulation) Bill, 2023 on November 10, 2023. The Esya Centre is pleased to be afforded an opportunity to respond to the Draft Bill. Our analysis, which examines each clause in detail, aims to unravel the complexities in the Bill. In doing so, we provide in-depth insights, particularly focused on the proposed inclusion of OTT services and news and current affairs publishers under the same regulatory framework as traditional broadcasters such as cable TV and radio. 

Attribution: Response to the Draft Broadcasting Services (Regulation) Bill 2023; Issue No. 112, January 2024, Esya Centre.

Response to the Public Consultation on the “Competition Commission of India (Commitment) Regulations and the Competition Commission Of India (Settlement) Regulations 2023"

Description: The Competition Commission of India (CCI) opened public consultations on two new draft regulations, namely the Competition Commission of India (Commitment) and the Competition Commission of India (Settlement) Regulations 2023 (hereinafter the Draft S&C Regulations), on August 28, 2023. The Esya Centre1 lauds the CCI for publicly consulting on draft versions of these two important regulations and is pleased to be afforded an opportunity to respond to both. Our response is divided into two parts. Part I provides a preliminary overview of our response, with Part II delving deeper into specific aspects of the regulations, such as timelines and confidentiality.

Attribution: Response to the Public Consultation on the “Competition Commission of India (Commitment) Regulations and the Competition Commission Of India (Settlement) Regulations 2023”. Issue No. 109, September 2023, Esya Centre.

Response to TRAI’s Consultation Paper on Regulating Converged Digital Technologies and Services- Enabling Convergence of Carriage of Broadcasting and Telecommunication Services

The Esya Centre is pleased to respond to the TRAI's Consultation Paper on Regulating Converged Digital Technologies and Services- Enabling Convergence of Carriage of Broadcasting and Telecommunication Services. We commend TRAI for providing an open platform for stakeholders to share their feedback on this critical issue.

Our response is divided into two parts. Part I presents our brief reactions to the consultation paper, while Part II provides a comprehensive analysis of our response. Our response is structured into five sections, each addressing a specific issue raised in the consultation. In each section, we examine TRAI's observations and propose counterarguments where necessary. Our aim is to engage with TRAI’s recommendations from first principles and bring attention to areas that may benefit from greater conceptual clarity.

Attribution: Response to TRAI’s Consultation Paper on Regulating Converged Digital Technologies and Services- Enabling Convergence of Carriage of Broadcasting and Telecommunication Services. Issue No. 107, April 2023, Esya Centre.

Code of Conduct Template for Self-Regulatory Bodies in Online Gaming

Description: The Ministry of Electronics and Information Technology (‘MeitY’) released proposed amendments to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (“Rules”) on 2nd January 2023. The draft amendments bring online games and online gaming intermediaries within the scope of the 2021 Rules. The draft amendments establish a self-regulatory framework for online gaming. The adoption of a self-regulatory framework for online gaming reflects an emerging consensus on the suitability of industry self-regulation for digital technologies.

Self-regulation is preferred in digital industries as it tends to be more agile and responsive to technological change than government regulation. In response we put together a template code of conduct to provide a framework that self-regulatory bodies can adopt to govern their functioning.

Attribution: Code of Conduct Template for Self-Regulatory Bodies in Online Gaming. Issue No. 106, February 2023, Esya Centre.

Response to the Second Draft Report by the Committee of Experts on Non-personal Data Governance Framework

We at the Esya Centre are grateful for the opportunity given to us by the Ministry of Electronics and Information Technology (MeitY) to respond to the Committee of Expert’s Report on Non-Personal Data Governance Framework (Report). We appreciate that the Committee has attempted to set out a broad framework that seeks to regulate several facets of the use of Non-Personal Data (NPD) while identifying possible areas of concern. In our suggestions, we engage with the Committee’s key recommendations and identify areas which require greater clarity. We recommend actions that assist in creating effective regulation geared towards achieving defined goals and outcomes. Part I contains the summary of recommendations, and Part II contains a detailed analysis of substantive elements of the Report. We have structured our responses into 4 themes namely: i) the definition of Non-Personal Data, ii) overlaps with existing proprietary frameworks, iii) community data and HVDs and iv) the regulatory architecture.

Response to the Report by the Committee of Experts on Non-personal Data Governance Framework

We at the Esya Centre are grateful for the opportunity given to us by the Ministry of Electronics and Information Technology (MeitY) to respond to the Committee of Expert’s Report on Non-Personal Data Governance Framework (Report). We appreciate that the Committee has attempted to set out a broad framework that seeks to regulate several facets of the use of Non-Personal Data (NPD) while identifying possible areas of concern. In our suggestions, we engage with the Committee’s key recommendations and identify areas which require greater clarity. We recommend actions that assist in creating effective regulation geared towards achieving defined goals and outcomes. Part I contains the summary of recommendations, and Part II contains detailed analysis of the Report. We have structured our responses into 4 sections on Competition and Innovation, Ownership and Access, Privacy and Definitions, and the Regulatory Framework. Within each section, we analyse the key recommendations made by the Committee and propose alternatives. We have sought to engage with the Committee’s recommendations on a first-principles basis and highlight areas which require greater conceptual clarity.

Response to the Consultation Whitepaper on the Strategy for National Open Digital Ecosystems (Node)

We at the Esya Centre greatly appreciate the opportunity given to us by the Ministry of Electronics and Information Technology (MEITy) to respond to the consultation whitepaper on the ‘Strategy for National Open Digital Ecosystems (NODE)’ (Whitepaper), which solicits public comments for developing a comprehensive national strategy on NODE. We appreciate that MEITy has identified design principles to develop a framework for digital governance through the Whitepaper, and that it has also identified key concerns that would need to be accounted for in developing the NODE framework. In answering the questions posed in the Whitepaper, we have focused our feedback on those relating to design principles, governance, and the potential risks of open digital ecosystems. We have approached this analysis from a broad, techno-legal perspective, and focusing on the rights and obligations of various stakeholders. Part I of this response will provide a brief snapshot of our recommendations under the relevant questions, which will thereafter be explored in detail in Part II. We hope that these discussions will prove instructive in a larger discourse about digital governance in India.

Comments on the: Personal Data Protection Bill (PDP Bill), 2019

The copyrightability of databases has been settled by the Supreme Court in Eastern Book Company v. DB Modak. Here, the question was whether the petitioner, a company which created databases of Supreme Court cases (which are in the public domain) could claim copyright protection for their databases. It was held by the Court that the petitioner’s input of independent skill, labour and capital, in editing and arranging the information as well as adding inferences from it in the form of headnotes, resulted in the database being a copyrightable work.

Response to the Draft Information Technology [Intermediary Guidelines (Amendment) Rules], 2018

We at the Esya Centre, greatly appreciate the opportunity given to us by the Ministry of Electronics and Information Technology (MEITy) to respond to the draft ‘Information Technology [Intermediary Guidelines (Amendment) Rules], 2018’ (“Draft Rules”), which seek to replace the rules notified in 2011. We appreciate that MEITy has undertaken to reform and clarify issues on Internet governance through these rules. However, after a thorough analysis of these rules, we believe a more holistic understanding of evolving technologies, and global trends in Internet governance may be instructive for MEITy to take this discussion forward. As such, we have approached this analysis from a broad, technological perspective, highlighting the major thematic areas under each proposed rule, rooting our arguments in broader discourses on internet governance and the attendant rights and obligations of stakeholders. Therefore, Part I of this response will provide a brief snapshot of some of the proposed Rules, and how they can be revised to comply with prior legislative jurisprudence, and best practices. Part II will delve into a more detailed discussion on the broader principles of regulatory governance. We hope that these thematic discussions will prove instructive in a larger discourse about the growing Internet ecosystem in India.