Europe’s Digital Services Act validates India’s approach to big tech

The DSA, which EU members agreed to on 23 April, seeks to regulate how Google, Facebook, and Amazon target advertisements towards users, based on parameters such as religion or race, and adopt stricter ways to cut down on hate speech or child abuse material on platforms.

The DSA can help set the pace for other countries in “codifying accountability and liability of social media platforms”, said N.S. Nappinai, an advocate at the Supreme Court of India and founder of Cyber Saathi Foundation. India has already sought a “more responsible social media”, with its IT Rules. This is now easier to push for on a global scale because of the DSA.

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

In India, the IT Rules, 2021, made it mandatory for ‘significant’ social media intermediaries, or online platforms with more than 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 in the next 15 days.

The DSA seeks to establish a similar practice, where users of very large online platforms (VLOPs), which have 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”.

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. 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”.

However, selective enforcement may continue despite such mandates, warned Alok P. Kumar, co-founder of Vidhi Centre for Legal Policy. “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 the DSA, it won’t matter much if the enforcement is selective,” he said.