Amending IT Act To Protect News Publishers From Big Tech Is Now Imperative. Here’s Why

The monopoly of big tech tends not to have a fair play in negotiating the payment terms for the use of the content of the publishers.

Across the globe, there have been two concerns on the business relationship of the use of data by Meta Tech is dictating terms for the use of data of publishers in their search engines and also to that of use for generative artificial intelligence (AI) developers’ unauthorised use of publisher content.

The monopoly of big tech tends not to have a fair play in negotiating the payment terms for the use of the content of the publishers. The recent judgment in the US on tacit agreement with Android phones of preventing other App stores and Google as monopoly thus mandating a fee for an In App billing by resorting to a monopoly and therefore have a negative impact on the subscription business of digital news players via illegal monopoly structures. 

In India, the competition commission (CCI) had similar observations that mandatory pre-installation of the entire Google Mobile Suite (GMS) under MADA, with no option to un-install the same, and their prominent placement amounts to the imposition of unfair conditions on the device manufacturers. Thus, Google violated Section 4(2)(a)(i) of the Competition Act. In March 2023, the NCLAT upheld CCI's Rs 1337.76 crore penalty on Google for antitrust violations that Google abused its market dominance in the Android ecosystem.

The other issue is that of how the content of publishers is used to train and fuel the generative artificial intelligence systems that are direct copyright infringement and not a fair use. While publishers make the investments and take the risks, generative AI developers reap the rewards in terms of users, data, brand creation, and advertising dollars. The continued unlicensed use of journalistic reporting portends injury to the public interest that it serves and may hinder the progress of generative AI innovations.

Other countries across the globe have either issued directions or enacted to ensure the Bargaining Code, highlighting the exclusive role of publishers to reproduce their work and prohibit reproduction ensuring that if Big Tech uses content of publishers, then there has to be paid service. It therefore imposes liability on online content-sharing service providers for the digital use of press. EU has issued direction whereas the Australian Communications and Media Authority (ACMA) has defined Mandatory Bargaining Code. The request, thus, is to define the Bargaining Code along with transparency.

Global Developments Hurting News Publishers 

due to Big Tech monopolies, the need is on how the Government/regulatory bodies should also move proactively to ensure that the misuse of monopoly by big tech should not cause injury to the publishers in India who are content providers and their hard work is used for the AI training as well. 

The need is for MeitY to proactively bring in the amendment to the existing rules of the IT Act, which already covers the content test, professional standard test and audience test as it already defines publisher and intermediary what is needed is to add the revenue test in terms of defining the threshold above that it will come under the IT Act, 2000, and its rules and flag bargaining mechanism mandatory under the god faith negotiation, mediation if required and provision for arbitration.

The power that big tech companies wield over the dissemination of information is immense. Their algorithms determine what content reaches the public, affecting the visibility of news articles, political messages, and public discourse. When algorithms are changed, they can disrupt the normal flow of information and potentially favour certain viewpoints or interests. 

Furthermore, addressing the issue of unilateral, unconscionable and unfair sharing of revenue by Big Tech is imperative. It requires strict implementation of policies and regulations to ensure a more equitable distribution of revenue. By promoting fair competition, India can strive towards a balanced and just digital economy. Collaborative efforts from government, stakeholders, and technology companies are crucial to resolving this pressing concern.

The second issue is that of transparency and hence the need to have Minimum Standards. Digital platforms are inter alia required to provide the news business with clear explanations of the type of data collected by the platform in relation to users’ Transparency in algorithmic decision-making is essential to maintain the integrity of India's democracy and also a step forward to harmonize the relationship between the News Publishers and the Big Tech. The News Publishers and the public have a right to know how algorithms function and how they might be altered, especially during election seasons. Explicit guidelines and disclosure mechanisms should be mandated to ensure that big tech companies do not inadvertently or deliberately influence the electoral process by manipulating the visibility of political content.

Government intervention is paramount to address the above-mentioned challenges faced by news publishers in the face of Big Tech dominance. By ensuring fair revenue sharing, protecting data privacy, and promoting collaboration and innovation, governments can safeguard the democratic role of journalism, and counter unconscionable practices by Big Tech, thereby preserving the vitality of the news industry.

Thus there is an immediate need for intervention while the proviso in the proposed Digital India Act is welcome, the injury is caused daily and India is standing at a disadvantage for not having the provision. Hence need is 

Issuance of advisory/amendment to the rule against the Intermediaries mandating them to inter alia provide, to the news publishers, the bargaining code through Good Faith Negotiation needs to be incorporated. That is to be supplemented by the algorithmic decision-making and proviso for revenue test and good faith negotiations. 

In this regard, The Government of India also framed Intermediary Guidelines in 2021 (under the Information Technology Act, 2000) wherein the Digital Intermediaries were mandated to follow certain due diligence guidelines to get the benefit of protection accorded under Section 79 of the IT Act. To enhance transparency and accountability in algorithmic decision-making, which is essential to safeguard the democratic values of India and prevent any undue influence on the electoral process, it becomes crucial to make mandatory, the sharing of algorithmic decision-making used by Big Tech with the public.

The latest amendment to the rule The Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules of 2021 (hereinafter referred to as 'the Rules') do define the publisher, intermediaries, and aggregators, Awaiting till the Digital India Act is enacted, the injury and stepmotherly treatment continues to Indian content providers the big and small publishers, thus the need is the Ministry of Electronics and Information Technology, in the interim, may issue an advisory/rule amendment mandating the Digital Intermediaries to share with the News publishers, all the data generated from the online advertising space. Insist of revenue test with good faith negotiations.  This interim measure will ensure the beginning of a transparent regime to prevent Big Tech from resorting to unethical practices. 

Further, it is suggested that the above-mentioned amendment may also mandate Big Tech to negotiate a conscionable and fair contract with the News Publishers in India. It is necessary to establish guidelines and restrictions on the operations of Big Tech platforms, ensuring transparency, fairness, and accountability. This regulatory approach would enable the Indian government to proactively address concerns such as unfair revenue sharing, data privacy breaches, and algorithmic biases.

The world is ensuring fair play for Big Tech, and India is now on a path to stop injury to publishers who have already represented the Government. The proactive steps will go a long way for small and big content providers, and publishers to get fair play in payment for the use of their content either in search engines or for the AI use. India is a big content provider in different regional languages and being a developing economy is of great interest across the globe. The fair play with due diligence to stop this continued injury is the ask by the content providers.

(The author is a Practitioner Development Economist and retired Secretary, GoI)

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