Why India Needs an Intermediary Liability Framework for Web3 and What it Should Look Like

Description: The World Economic Forum defines Web3 as a growing segment of decentralised technologies that help “establish provenance, veracity, and value of data.” Web3 technologies, which include cryptography, distributed ledger systems, smart contracts and fungible and non-fungible digital assets, aim to redress the centralisation of data, with large Web2 internet companies, by returning ownership and control to users. This paper argues that the digital product aspect of Web3 should be regulated under a specialised intermediary liability framework targeting centralised Web3 or Web2.5 entities. Such a framework would ensure Web3 digital product risk redressal, while still enabling entrepreneurs to innovate.

Attribution: Meghna Bal and Mohit Chawdhry. Why India Needs an Intermediary Liability Framework for Web3 and What it Should Look Like. August 2023, Esya Centre.

New-Age Digital Consumption in India: A Survey of Social Media, OTT Content and Online Gaming

Description: This report examines the consumption and engagement patterns of users in India’s digital market. Three services from the digital consumption basket – social media, over the top (OTT) content services and online gaming – are in focus here. Each of these has witnessed sharp growth in its user base, revenues and innovation in recent years. The three services have also had a significant impact on users’ time-use for skill development, networking, and leisure/entertainment.

Attribution: Professor Rajat Sharma and Dr Vikash Gautam. New Age Digital Consumption in India: A Survey of Social Media, OTT Content and Online Gaming. July 2023, Esya Centre.

Unbundling the demand for a Network Usage Fee

Description: Major telecom service providers (telecom operators or telcos) in India are arguing for the introduction of a network usage fee for over-the-top (OTT) applications. They contend that there is currently a structural imbalance as OTT platforms allegedly benefit from telecom operator funded networks but do not invest in creating, operating, maintaining or expanding them. Relying on secondary research, this report evaluates the merits of their assertions. Broadly, the literature available indicates that contentions in favour of network usage fees may be incorrect.

Attribution: Noyanika Batta & Meghna Bal. Unbundling the demand for a Network Usage Fee. July 2023, Esya Centre.

Assigning Spectrum for Satellite Services in India

Description: The release of the Telecom Regulatory Authority of India’s consultation paper on “Assignment of Spectrum for Space-based Communication Services” in April 2023, triggered a debate on whether or not spectrum should be assigned across satcom services via auctions. It has also sparked concerns regarding access to sufficient satellite spectrum amongst global satellite operators such as Amazon (Project Kuiper) and OneWeb who want to enter the Indian market. The paper comes at a time when TRAI is consulting with stakeholders on spectrum assignment for space-based communication services. It presents a comprehensive analysis of technical, regulatory, and economic arguments on this issue and echoes the view of majority stakeholders.

Attribution: Tamanna Sharma and Niharika. Assigning Spectrum for Satellite Services in India. June 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.

Information Warfare Through Social Media Platforms

Description: This paper focuses on information warfare operations conducted by foreign adversaries through social media platforms. Specifically, it considers challenges related to social media and information warfare in the Indian context and makes suggestions on how India may mitigate such threats, in particular by leveraging and partnering with domestic social media platforms. The recommendations in the paper emanate from global best practices in responding to these threats.

Attribution: Vaishnavi Prasad, Meghna Bal, Shweta Venkatesan, and Dr. Ajai Garg. Information Warfare Through Social Media Platforms. March 2023, Esya Centre.

Regulating Media Ownership in India: Challenges and the Way Ahead

Description: In April 2022, the Telecom Regulatory Authority of India (TRAI), the telecom and broadcast regulator, released a consultation paper (CP) on ‘Issues Relating to Media Ownership’. The Esya Centre and the Internet Freedom Foundation brought together media business owners, journalists, academics, and other stakeholders for a roundtable on media ownership in India. The stakeholders discussed various issues raised in the CP, including the links between plurality and ownership concentration, the adequacy of the existing legal framework, and difficulties in assessing ownership and control. This paper presents key takeaways from the discussion on the central aspects of the TRAI CP. It also suggests recommendations for policymakers on how the regulation of ownership in media markets can be improved.

Attribution: Mohit Chawdhry. Regulating Media Ownership in India: Challenges and the Way Ahead. March 2023, Esya Centre.

Addressing Regulatory Fragmentation in Cross-Border Data Flows

Description: The rules governing cross-border data flows are becoming increasingly fragmented, at the domestic and international level. In April 2020, some 128 of 194 countries had data protection rules in place. While these laws manifest different approaches to cross-border data transfers, trends suggest that restrictions are growing on free data flows. This paper examines the competing approaches to cross-border data flows and identifies some challenges. It also explores India’s new approach to cross-border data flows, and the opportunity the country can seize to champion a more harmonised regulatory approach.

Attribution: Vaishnavi Prasad. Addressing Regulatory Fragmentation in Cross-Border Data Flows. February 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.

Impact of VDA Tax Architecture on Risk Exposure of Indian Investors

In a recently published Esya Centre report “Virtual Digital Asset Tax Architecture in India: A Critical Examination”, we show that the main (unintended) impact of the tax policy on Indian VDA industry is offshoring of domestic business and liquidity to foreign exchanges. This report, extends the earlier work by examining – how the tax architecture changed the risk exposure of investors trading on centralised VDA exchanges in the country.

Regulation of OTT Communications Services: Justified Concern or Exaggerated Fear?

Description: Telecom service providers (TSPs) have been pushing for the regulation of over-the-top (OTT) service providers in India since 2015. Meanwhile, OTT firms maintain that their services are not comparable with telecom. The debate centres on two issues in particular: same service, same rules and infrastructure cost sharing. The merits of the TSPs’ demands and counterarguments are explored in this paper.

Part 1 of this paper outlines the demands raised by TSPs and the merits of these from a historical and legal perspective. 

Part 2 of the paper compares OTT regulation trends across some jurisdictions. The aim is to trace the changes made to telecom regulations internationally in response to emerging technologies and ask whether OTTs have been brought under the regulatory regime for TSPs. 

Finally, in Part 3 of the paper, through insights from historical and legal analysis and from a comparative standpoint, we recommend the approach the government should adopt.

Attribution: Noyanika Batta. Regulation of OTT Communications Services: Justified Concern or Exaggerated Fear? January 2023, Esya Centre.

Virtual Digital Asset Tax Architecture in India: A Critical Examination

Description: This report is the first empirical exercise to estimate the impact of India’s tax policy on centralised Virtual Digital Asset (VDA) exchanges, that are similar to stock exchanges for digital assets. It examines the impact of three events on the centralised virtual digital asset (VDA) industry in India, announced on 1st February 2022 during the Union Budget 2022-23: (a) a levy of a flat 30 percent tax on gains from VDA trade applicable from 1st April 2022; (b) a levy of 1 percent tax deducted at source (TDS) on transactions above INR 10,000 from 1st July 2022; and (c) the provision disallowing the offsetting of losses applicable from 1st April 2022s.

Attribution: Dr. Vikash Gautam. Virtual Digital Asset Tax Architecture in India: A Critical Examination. Special Issue No. 208, January 2023, Esya Centre.

Price Discovery in the NFT Market

Description: This paper examines the price discovery mechanism of non-fungible tokens, or NFTs. That is, how do the forces of supply and demand determine an NFT transaction? We use data on some 55,000 unique NFTs with 16,000 creators/artists, and 15,000 collectors/buyers on Foundation, one of the largest NFT exchange platforms, to address this question.

Attribution: Dr Vikash Gautam and Tamanna Sharma. Price Discovery in the NFT Market. December 2022, Esya Centre.

Quantification of Intangible Cultural Assets

Description: A study on Quantifying the Contribution of Intangible Cultural Assets (ICAs) to the Economy of Rajasthan, under the aegis of the Chief Minister’s Rajasthan Economic Transformation Advisory Council (CMRETAC). It lists out a comprehensive set of policy recommendations for protecting, preserving, and promoting ICAs in the state. This is a pioneering study in the country, owing to its state-wide coverage.

Attribution: Quantification of Intangible Cultural Assets. December 2022, Chief Minister Rajasthan Economic Transformation Advisory Council (CMRETAC), Department of Planning Rajasthan, and Esya Centre.

Market Study on Immersive Technologies in India: Propelling The AVGC Sector

Description: This report explores how immersive technologies will change the way creators produce content and audiences consume it.. The report also assesses the readiness and competitiveness of India’s AR/VR industry and suggests some policy measures that could further bolster the sector based on insights from semi-structured interviews with relevant stakeholders in the AR/VR ecosystem.

Attribution: Vani Tripathi Tikoo, Akshat Agrawal, Varun Kakar, Mohit Chawdhry and Vaishnavi Prasad. Market Study on Immersive Technologies in India: Propelling the AVGC Sector. November 2022, Esya Centre.

Devising an Emerging Market Perspective for Competition Regulation in the Digital Age

Description: This report is first in a series on Indian Perspectives on Competition Regulation in Digital Markets co-published by the Observer Research Foundation (ORF) and the Esya Centre. It is a synthesis of insights that were shared during a discussion, convened by the Esya Centre and ORF, among stakeholders belonging to the public sector, industry, academia, and consumer interest organisations as a first step towards formulating a position on digital competition regulation for India.

Attribution: Meghna Bal, et al., Eds., Devising an Emerging Market Perspective for Competition Regulation in the Digital Age, November 2022, Observer Research Foundation and Esya Centre.

Market Study on Film Distribution Chain in India

Description: With Esya Centre as a Knowledge Partner, the Competition Commission of India (CCI) conducted a Market Study on Film Distribution Chain in India.

The purpose of the study was two-fold. One, to understand the state of competition in the film industry in view of the evolving industry dynamics related to digitization. And two, to identify issues related to competition that can be resolved or mitigated through self-corrective measures to limit the need for Commission’s interventions, with a view to encourage the production and dissemination of content and overall wellbeing of the stakeholders in the ecosystem and address bargaining power imbalances across the value-chain, if any.

The study employed a combination of desk research and primary research that included focus-group discussions, one-on-one meetings, post-discussion surveys, and written submissions of stakeholders. The study highlights some of the key competition issues in the film distribution chain in India, as identified by stakeholders. In doing so, the study discusses the role of various associations in the chain, be it at the production, distribution, or exhibition level; the superior bargaining power of some entities and the resultant imbalances; the bottlenecks that exist at various levels; unequal distribution of risks; revenue-sharing arrangements; new-age technologies in cinema; tying and bundling arrangements at the exhibition level, etc.

The study provided key insights into conceptual and analytical questions such as the relevant market, assessment of the bargaining power of industry constituents, and objective commercial justifications for certain conduct. Relying on the findings from this study and under its advocacy mandate, the Commission has recommended the film industry to devise certain self-regulatory measures for various categories of stakeholders.


Roadmap for a Future-Ready Digital India Act

Synopsis: The Indian Government recently announced that it will introduce the Digital India Act, a new information technology law, that will replace the Information Technology (IT) Act, 2000. Reports indicate that the new legislation will focus on engendering greater “openness, safety, trust and accountability” in the digital economy. The emphasis on accountability possibly means a recasting of the intermediary liability regime, to place greater responsibility on the shoulders of digital businesses. Indeed, it is important to introduce measures that enable the State to safeguard public interest and rights online. However, it is also important that in a bid to usher in greater liability for digital businesses, decisionmakers do not compromise on economic goals, such as the target of a trillion-dollar digital economy by 2025.

This report argues that the goals of achieving economic growth and addressing public interest concerns online are not mutually exclusive. Specifically, it lays out principles and objectives that will enable the Digital India Act to improve enforcement capabilities in the online realm and also grant digital businesses greater regulatory certainty – an important consideration for technological and economic progress.

Attribution: Meghna Bal. Roadmap for a Future-Ready Digital India Act. September 2022, Esya Centre.

The Metaverse Primer: A Technological and Legal Overview from an Indian Perspective

Synopsis: With virtual reality set to take over the internet, the virtual worlds we have seen so far will be transformed beyond recognition. But what exactly is the metaverse? What will it look like? What are the opportunities and challenges it poses? What is the future of the metaverse in India? This report attempts to answer some of the questions that lie at the heart of this technology.

Attribution: Noyanika Batta. The Metaverse Primer: A Technological and Legal Overview From an Indian Perspective. September 2022, Esya Centre.

Offshore Online Betting and Gambling in India: A Risk Assessment

Synopsis: This paper describes how offshore betting and gambling websites are violating Indian law with impunity. By operating from foreign jurisdictions, they are able to evade enforcement actions by Indian authorities. Blocking access to these websites and preventing offshore betting and gambling firms from operating in India is crucial to the welfare of Indian citizens. While mechanisms exist to effect such remedies, they are difficult to enforce for reasons we attempt to identify. We map the offshore betting and gambling ecosystem to understand its scope of operations and the nature of its harms, in order to suggest remedies in India.

Attribution: Priyesh Mishra. Offshore Online Betting and Gambling in India: A Risk Assessment. July 2022, Esya Centre.