India, the Digital Battleground

The submission to Parliament of the final draft of the long-awaited Personal Data Protection Bill shows that other concerns regarding digital rights have been taken on board after two years of public debate. The government takes a step back on the issue of data sovereignty and on the definition of critical and sensitive data subject to oversight. The PDPB has actually moved even closer to Europe’s GDPR on issues such as the right to erasure, anonymization, and requirements for social media (coming under the heading of "significant data fiduciaries").

But the 56 pages text has several important grey zones that could still allow for much more control by central authorities: it will be interesting to see whether both Houses – where Modi’s Bharatiya Janata Party (BJP) has a comfortable majority since June 2019 – seek clarification or rubberstamp the government’s text. Non-critical and non-sensitive data (including passwords) are spared any requirement for localization. Sensitive data (including financial data) can be transferred under conditions that include "explicit consent". Critical data can be transferred if adequacy of standards is recognized with another country or if "vital interests" are at stake.The other side of the coin is that the government has full freedom to define what is "critical" data. But another issue remains: there are large powers conferred to the future Data Protection Authority (DPA). It will receive the mission to interpret the law, and to define many of its terms. This quasi-legal organization is staffed and budgeted by the government (or by states as is the case for local DPAs). An Appellate Tribunal is provided, but its members are nominated by the government (only among former Supreme Court Justices for its Chairperson). In other words, there was a balancing act.

Unlike China, which essentially operates a closed internet with a one-way international access for authorities, India has big stakes in free and open data flows: digital data treatment is a key service activity. Its two largest partners, the United States and the European Union, will prioritize different perspectives: data localization is an essential concern of American platforms; rule of law is an obligatory feature of the EU’s adequacy agreements such as has been concluded with Japan.

A third development is the opening by India’s Competition Commission of an enquiry into Amazon (and Flipkart, now a Walmart subsidiary) on the first day of a much-publicized visit by Jeff Bezos. While the enquiry falls short of accusations of a dominant position, it challenges unfair trade practices and discrimination among partners, from discounts to preferred brand launches and choices between mobile phone sellers.

Without doubt, the move is related to domestic politics. The Confederation of All-India Traders has 60 million members and has heavily supported Narendra Modi. At the other end of India’s economy, businessmen such as Mukesh Ambani, also a Modi supporter now in trouble over the financing of his mushrooming phone network, harbor ambitions for e-commerce: they look at China, which has nurtured its e-commerce giants and largely excluded foreign competitors. We are clearly not there in India – where large American platforms have the same lead as in Europe. This leads to questions, and those asked by the Competition Commission are indeed justifiable.

Digital India is one of the world’s important on-going stories. It is among the most advanced nations in digital governance and inclusiveness. It has many large and small entrepreneurs ready to revolutionize the economy and society. The three issues outlined above also prove every day the subcontinent’s search for its own solutions between several potential models – European, American and Chinese.

Copyright : MANJUNATH KIRAN / AFP