Indian publishers getting step motherly treatment by big tech as no directions from government in place

It is important to understand the legal positioning of these two players in India and their B2B arrangements of sharing the content.

The changing habits of information seekers regarding internet search engines call for an intervention by the Government of India as a watchdog, to ensure fair play between the content provider and the big tech companies and Meta. In 2022, nearly 99,000 search queries were processed by Google itself every second across the globe. The range of information is spread across varied subjects besides just news. The backend for this search engine includes thumbnails, headlines and snippets from the content provider.

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The two important actors for collating and disseminating content to the seeker with the spread of the internet are the publisher and the intermediary. It is important to understand the legal positioning of these two players in India and their B2B arrangements for sharing content.

The issue on the table is the B2B commercial relationship between the content supplier (publisher) and these big tech companies and Meta, which spread content through their algorithms.

By providing snippets, these companies infringe upon the publisher's content rights (content collected, collated, verified and brought in print – either in print or electronic format) as users don't click on the website link of the publisher. Data shows 65 percent of search concludes in the intermediary platform itself. Hence, the intermediary (big tech) search is no longer just providing the index but an intelligent and comprehensive engine using AI (artificial intelligence). It enables the context of search queries, providing a good filter to provide near-accurate results. This gives rise to the issue of these companies being liable to pay content providers for using their content on their respective platforms.

This issue has triggered concerns across the globe. Authorities in several nations are attempting to address this issue by bringing new legislations, regulations, directives and rules to define the publisher, intermediary, and provide power to make rules, arbitration provisions, arbitration processes, mandatory registration for publishers etc.

In India, however, the comprehensive Information-Technology Act, 2000, already provides legal provisions for all of the above. The possible solution, therefore, is to immediately amend the rules to make it mandatory for these companies to pay for the use of content provided by the publisher. Negotiations can be done individually by publishers or collectively. The act already has provisions for oversight by a government controller to ensure fair play and flag mandate for grievance redressal, arbitration and appeals.

The Information-Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, can further be expanded as they provide for compensating the publisher -- which is the content gatherer -- for the usage of its content by the 'intermediary' curator/aggregator.

Thus the IT Act 2000, which other countries are attempting to emulate by bringing out new legislations, already empowers the Government of India to authorize amendments to rules.

The content provider—publisher has been defined and covered in the amendment to rule under IT Act 2000 as listed above. Subsequently, it can be incorporated in the proposed comprehensive Digital Bill, which provides the following.

1. Enabler to the government to regulate that big companies do negotiate with publishers and have B2B written agreements for revenue sharing. Government to have tools to monitor, and if needed, force these negotiations.

2. Good faith business for the digital platform. The two sides should mandatorily enter negotiations and if an agreement is reached, both parties must notify the nodal officer/agency, specially appointed for this purpose.

3. To permit bargaining by individual, company or collective mechanisms and monitor that the publishers large and small get a fair deal. To collectively negotiate with large online platforms over the terms and conditions of the platforms’ use of content.

4. The provision to ensure that providers do not violate federal anti-trust laws when they negotiate with large online platforms or withhold content from large online platforms.

5. The rule to prohibit platforms from retaliating against providers for participating in collective negotiations or arbitration authorized by blocking their sites.

6. To have B2B relationship for use of content and share of revenue with the publisher and compensation to the injury caused due to fall of revenue.

7. Big tech companies and Meta as the intermediary to have transparent and fair mechanisms for revenue sharing.

8. Flag the proviso in the main act to have the mechanism of grievance redressal.

9. Similarly flag the proviso of adjudicating, arbitration and appellate

Hence, there is an immediate need to bring amendments to the rules to stop the injury to the publisher and monopolistic activity of the big tech companies under the existing Information Technology Act 2000 (amended in 2008) Sec 87, to ensure these companies don't take advantage of content producers and owners.

Views expressed in the article solely belong to the author. HT Digital Streams is not responsible for the views, arguments and issues raised in this piece.