The Ministry of Electronics and Information Technology (MeitY) notified on February 25, 2021, the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (‘Rules’). The Rules now supersede the earlier Information Technology (Intermediaries Guidelines) Rules, 2011. As per a press release issued by the MeitY, the Rules were enacted in collaboration with the Ministry of Information and Broadcasting (MIB), owing to concerns among the public on transparency, accountability and rights of users on digital media, including social media, OTT platforms, etc.

Part I differentiates between a ‘social media intermediary’ and a ‘significant social media intermediary’. A social media intermediary is defined as “an intermediary which primarily or solely enables online interaction between two or more users and allows them to create, upload, share, disseminate, modify or access information using its services” whereas a significant social media intermediary is defined as having “a number of registered users in India above such threshold as notified by the Central Government”.

Part II, to be administered by the MeitY, lays down a list of due diligence to be observed by intermediaries while discharging their duties [Rule 3(1)] and mandates a grievance redressal mechanism to be put in place [Rule 3(2)]. Rules 4 and 5 lay down additional lists of due diligence to be observed by significant social media intermediaries, and in relation to news and current affairs content. The Rules also provide for the Ministry to require any intermediary, which is not a significant social media intermediary to comply with all or any of the obligations applicable to a significant social media intermediary [Rule 6]. Rule 7 lays down that if an intermediary fails to comply with these rules, the safe-harbour provision under Section 79(1) of the Information Technology Act, 2000 shall not be applicable to it.

Part III, to be administered by the MIB, sets out the Code of Ethics and Procedure and Safeguards in relation to Digital Media, specifically applicable to publishers of news and current affairs content and publishers of online curated content. Rule 10 lays down the process for furnishing and processing of grievance. The Rules also call for the creation of a three-tier grievance redressal mechanism:

• Level I- Self- Regulation by Publishers [Rule 11].
• Level II- Self-Regulating Bodies of Publishers [Rule 12]
• Level III- Oversight Mechanism of the Central Government [Rule 13]

The Rules also lay down, in the appendix, a specific Code of Ethics for news and current affairs and online curated content and certain issue specific guidelines, such as for discrimination, nudity, etc.

The guidelines could be accessed here: www.meity.gov.in/writereaddata/files/Intermediary_Guidelines_and_Digital_Media_Ethics_Code_Rules-2021.pdf

Disclaimer: Views, opinions, interpretations are solely those of the author, not of the firm (ALG India Law Offices LLP) nor reflective thereof. Author submissions are not checked for plagiarism or any other aspect before being posted.

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In October 2020, India and South Africa filed a joint proposal before World Trade Organization (WTO) Council seeking  waiver of  certain provisions of Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement.[1] The proposal seeks waiver from  implementation, application and enforcement of Section 1 (Copyrights and related rights), Section 4 (Industrial Designs), Section 5 (Patents), and Section 7 (Protection of undisclosed information) of Part II of the TRIPS Agreement in relation to prevention, containment or treatment of COVID-19.  The proposed waiver appears to be owing to “…an urgent call for global solidarity, and the unhindered global sharing of technology and know-how in order that rapid responses for the handling of COVID-19 can be put in place on a real time basis.”

The waiver is requested until widespread vaccination is in place globally, and the majority of the world’s population has developed immunity. The only exception to the claimed waiver is its application to protection of Performers, Producers of Phonograms (Sound Recordings) and Broadcasting Organizations under Article 14 of the TRIPS Agreement.

It is important to maintain the fair balance between public health and intellectual property rights. Accordingly, the proposal is a great initiative in the time of pandemic as currently,  global integration is an utmost necessity. There are many countries involved in domestic research with respect to COVID-19 related vaccines and it is important for least developed countries or the countries with lack of resources to have fair access to the vaccine. Although Article 31bis of TRIPS allows special compulsory license by way of which drugs or vaccines could be exported to other members, the proposed waiver from TRIPS would avoid the hassle of getting into the complicated and time-consuming structure of Article 31bis. Moreover, Article 31bis is only applicable to pharmaceutical products, and hence it is questionable if it in itself is sufficient to deal with the challenges of COVID-19, which demands other medical products and equipment, apart from just pharmaceutical products.

Notably, the proposal is not limited only to waiver from patents related provisions, but also seeks waiver from Sections 1 (Copyrights and related rights) and Section 4 (Industrial Designs) of the TRIPS Agreement. While it is note-worthy that the proposal acknowledges intellectual property rights other than patents pose a barrier in the backdrop of COVID-19, it does not elaborate much on the issue. It is worth deliberating whether the waiver from the copyright and design related provisions is the need of the hour and whether it will fulfil the purpose behind the proposal viz. prevention, containment or treatment of COVID-19. 

[1] https://docs.wto.org/dol2fe/Pages/SS/directdoc.aspx?filename=q:/IP/C/W669.pdf&Open=True

Disclaimer: Views, opinions, interpretations are solely those of the author, not of the firm (ALG India Law Offices LLP) nor reflective thereof. Author submissions are not checked for plagiarism or any other aspect before being posted.

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In the race to fight COVID-19, making vaccines more accessible to everyone has to be priority. Yet, high prices and monopoly rights created by the manufacturers of these vaccines continue to be a strong deterrent towards trying to achieve this goal. In a bid to tackle this global issue, India and South Africa called for a waiver of certain parts of the Agreements on Trade Related Aspects of Intellectual Property Rights (TRIPS) by the World Trade Organisation (WTO) in October 2020. The idea was increasingly supported by a number of nations, including the African Union[1] and the Director-General of the World Health Organisation (WHO), Tedros Adhanom.[2] Here, the author argues why such a waiver would be impractical.

The waiver proposed by India and South Africa aims to waive patent rights over all COVID-19 vaccines developed globally, which would allow every nation to make and sell their own copies of the COVID-19 vaccine at cheaper rates. However, patent waivers over inventions on which billions have already been spent would critically dis-incentivise future innovation, which is the primary justification in granting IP rights in the first place.

Moreover, waiver of patent rights is no guarantee that the low-income and lower-middle-income nations would receive vaccines in a timely manner. Such countries have almost no experience in the creation of vaccines and most nations do not have the facilities to start large-scale production of vaccines for their population. They would ultimately have to rely on importing vaccines from other nations.

The problem with a waiver is that it is not an expeditious solution. While patent waivers might serve short-term interests, it is self-defeating in the long-term. Rather than risking patent rights of innovators, there can perhaps be a third way of having the concerned pharmaceutical companies enter into licensing deals to allow other manufacturers to produce vaccines or by having these companies place a cap on the price at which they can sell the vaccines. If developing nations can get a commitment from the developed nations on them helping the poorer nations in the fight against COVID, perhaps a waiver, putting future scientific innovation at risk, won’t be necessary.

[1] Alexander Winning, Omar Mohammed, Ayenat Mersie, African Union backs call to waive intellectual property rights on COVID-19 drugs, Reuters (February 25, 2021), https://news.trust.org/item/20210225123343-3b8f3/.

[2] Sarah Boseley, WHO chief: waive Covid vaccine patents to put world on ‘war footing’, The Guardian (March 05, 2021), https://www.theguardian.com/world/2021/mar/05/covid-vaccines-who-chief-backs-patent-waiver-to-boost-production.

Disclaimer: Views, opinions, interpretations are solely those of the author, not of the firm (ALG India Law Offices LLP) nor reflective thereof. Author submissions are not checked for plagiarism or any other aspect before being posted.

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The Advertising Standards Council of India (ASCI) released its draft guidelines for “Influencer advertising on digital media” in February, 2021. The main objective of the guidelines is to ensure that consumers should be able to distinguish when something is being promoted with an intention to influence their behaviour for an immediate or eventual commercial gain. Keeping that objective in mind the guidelines provide an updated definition of few terms and disclosure requirements.

A disclosure in the form of clarification that a piece of communication is an advertisement has to be made by the influencer or publishing account on which the advertisement is published, or the advertiser for whose brand the advertisement is. In the case of a brand using a virtual influencer, the onus of the disclosure is upon the advertiser.

The disclosure has to be of such nature that the consumer is able to recognise that something is an advertisement without having to click or interact with it. The guidelines restrict disclosure label options to #ad, #collab, #promo, #sponsored  and #partnership. No other labels are allowed as the consumer may not be familiar with short forms or other words to connote advertisements. This list will be periodically reviewed to add any new labels that become popular or recognised by an average consumer as a way to connote promotional communication.

As per the guidelines, the disclosure label has to be upfront, must be in English or translated into the language of the advertisement, in a way that it is well understood by the average consumer, viewing the advertisement. Blanket disclosures in a profile or bio are not  considered adequate as the visitor might read or watch individual video. In case of an advertisement of a picture or video not accompanied by a text post, the disclosure label should be superimposed on such video or picture. For videos that last 15 seconds or lesser, the disclosure label must stay for a minimum of 2 seconds. For videos longer than 15 seconds, but less than 2 minutes, the disclosure label stays for 1/3rd the length of the video. For videos which are 2 minutes or longer, the disclosure label must stay for the entire duration of the section. In live streams, the disclosure label should be placed periodically, for 5 seconds at the end of every minute so that users who see part of the stream can see the disclosure. In the case of audio media, the disclosure label must be clearly announced at the beginning and at the end of the audio.

Under the guidelines, the influencers are also required to exercise due diligence that the specific claim made in the advertisement is capable of scientific substantiation. The contract between the influencer and advertisement must also include clauses pertaining to disclosures, due diligence and use of filters.

In an event of consumer complaints concerning the violation of any guidelines or suo moto cognizance, the ASCI shall issue notice to brand owners and influencers.

The guidelines are open to feedback until March 21, 2021 and could be accessed here:

https://www.ascionline.org/images/pdf/guidelines-for-influencer-advertising-on-digital-media-draft-for-stakeholder-inputs.pdf. Based on the feedback and inputs, the final guidelines are slated to be issued by ASCI by March 31, 2021. The guidelines will be applicable to all promotional posts published on or after April 15, 2021.

Disclaimer: Views, opinions, interpretations are solely those of the author, not of the firm (ALG India Law Offices LLP) nor reflective thereof. Author submissions are not checked for plagiarism or any other aspect before being posted.

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Niti Aayog, a policy think tank of the Government of India, released in December 2020, Draft Guiding Principles for the Uniform National-Level Regulation of Online Fantasy Sports Platforms in India (hereinafter referred to as “discussion paper”). The discussion paper states its view is“…to examine the fantasy sports industry structure and consider evolving guiding principles that can help the industry to grow by adhering to guidelines which are consistent and based on well-recognised principles.”

The discussion paper draws attention to the differential treatment faced by Online Fantasy Sports Platform (“OFSP”) users across India resulting in  legal ambiguity. It thereby expresses the need for uniform operating standards. It highlights that although fantasy sports received judicial recognition, fantasy sports contests have  no independent legal recognition and as a result, have to take shelter under an undefined exception to the state gambling and public order laws. Speaking of the reason behind the need for formal recognition of fantasy sports industry and regulation thereof, the discussion paper states the same would “…enable Indian OFSP operators to focus on innovation and achieve scale and expand their operations in a clear and principle-based regulatory environment, achieving the mission of the Aatma Nirbhar Bharat Initiative…”. Further, it suggests considering setting up of an independent and cost-effective grievance redressal mechanisms and concurs with the Sports Law and Policy Centre’s (SLPC) suggestion for “institution of clear guidelines and the creation of centrally administered and nationally available safe harbor for games of skills, adhering to these guidelines”. It mentions that pursuant to the deliberations with eminent persons from the industry a few principles and recommendations were agreed upon including a self-regulatory organization for fantasy sports with at least 66% registered fantasy sports users in India and an independent oversight board looking after the governance of self-regulatory organization.

The discussion paper provides that the formats of the fantasy sports contents offered by OFSPs should remain skill predominant and an independent evaluation committee, will undertake statistical and legal evaluation to ascertain that the format is skill-predominant in determining the winning outcome. It provides that OFSP operators are also required to keep statistical data to track player/user performance on their platforms and submit the same to a self-regulatory organization periodically to demonstrate that the formats are skill predominant. It also states that any pay-to-play formats will be subject to approval of the evaluation committee and should not be offered to users less than 18 years old

The discussion paper further provides that the terms of participation in fantasy sports contests should be fair and transparent, and participation should be provided a grievance redressal mechanism for their complaints and also lay down the provisions for advertising and promotion of fantasy sports contests. 

The discussion paper can be accessed here: https://niti.gov.in/sites/default/files/2020-12/FantasySports_DraftForComments.pdf 

Disclaimer: Views, opinions, interpretations are solely those of the author, not of the firm (ALG India Law Offices LLP) nor reflective thereof. Author submissions are not checked for plagiarism or any other aspect before being posted.

Copyright: ALG India Law Offices LLP