Advancing technology and a growing trend towards peer-to-peer transactions facilitated by online platforms has ushered a revolution in the field of digital payments. Even the Central Banks want to exploit these new technological developments and are investigating the technology of ‘Central Bank Digital Currency (CBDC)’ to use it as a medium to not only proliferate the space of digital payments but also make it accessible to the public at large and expedite the payments and settlements mechanism for retail and wholesale payments. More than 60 Central Banks are researching on the use of CBDC’s in their economy, with countries like China, Sweden, Canada and the U.K launching pilot projects.[1] But astonishingly, it is the smaller countries such as the Caribbean, Bahamas and Cambodia which are leading the charge on CBDC’s with live projects such as Bahamas Sand Dollar, Bakong Cambodia, and Eastern Caribbean DCash[2]. Taking into consideration, the rising consensus towards the use of CBDC’s for advancing the economy, even the RBI is exploring the use of CBDC’s, and has already started working on a pilot project, with plans to launch its own CBDC by the end of 2022[3]. Amidst all these developments, it is imperative that we don’t stay blindsided to the potential pathbreaking impact CBDC’s can have on the functioning of the payments and settlements system and the economy. Through this article, the author makes an attempt to apprise the readers of the fundamentals of the technology and partake in an analysis discussing its pros and cons. Before delving into further analysis, it is crucial to note that CBDC’s should certainly not be mistaken for cryptocurrency, at the risk of sounding reductionist, CBDC in very simple terms is just fiat currency but in a digital form. The RBI defines CBDC as “legal tender issued by a central bank in a digital form. It is the same as a fiat currency and is exchangeable one-to-one with the fiat currency” (Reserve Bank of India, 2021). Despite being considered as ‘legal tender’ and equivalent of fiat currency the digital nature of CBDC allows it to hone characteristics specific to the function it has to perform, hence the purpose for which CBDC is being issued will have a great influence on its design. Possible iterations of CBDC’s Since CBDC’s are essentially a form of programmable currency, there are a lot of customisations which the issuer can make to alter its characteristics, such as: They can be token based or account based. A token based CBDC can be formulated on a centralised blockchain with the Central Bank as its regulator, which would operate via a public private key mechanism. On the other hand, an account based CBDC is similar to the current account-based model with respect to physical currency and would essentially require a banking relationship with the CBDC holder and the bank, where each transaction is debited or credited through the account(Fernández de lis & Gouveia, 2019 ). They can be made universal via the system of token-based currencies or private via the system of private currencies (Fernández de lis & Gouveia, 2019 ). They can be anonymous (like cash) or identified (like current accounts). The first corresponds to the idea of token-based CBDCs, and the second to account-based CBDCs (Fernández de lis & Gouveia, 2019). They can be programmed to pay interest at the option of the issuer, which essentially translates to interest being enabled as a feature on such currencies (Fernández de lis & Gouveia, 2019). From the various possible customisations of CBDC’s, there are three basic objectives which can be culled out, acting as the basis for issuing of it: (i) to improve the working of wholesale payment systems; (ii) to enhance the instruments available for monetary policy (iii) to innovate new methods of monetary policy and quantitative easing during financial crisis. However, the conundrum with respect to achieving each of these goals is that every individual goal requires us to create a CBDC with different characteristics, which would be interacting with different categories of individuals/institutions and thus have different levels of market and technological penetration. To cut it short, there are a lot of variables which have to be considered for designing a CBDC which results in added complexity. For better understanding of the readers, the author has made an attempt to conceptualise the CBDC which can be issued to achieve the aforesaid said goals, herein below: (i) If the objective is to improve the functioning of wholesale payment systems, it can be argued that Digital Ledger Technology (DLT) can provide an excellent basis for such CBDC’s. First of all, since we are just referring to wholesale payments, we can have a DLT platform which is just restricted to banks, financial institutions, and large corporations [4]. The best suited CBDC for such transactions would have to be tokenised, identifiable and restricted. It can or cannot be interest bearing depending on the contractual obligations between the parties involved in wholesale payments. It will be tokenised because it is based on a DLT and coupled with a public/ private key system along with a consensus mechanism programmed into that ledger to authenticate transactions. This way the Central Bank would have not have to waste any of its human resources completing compliances to affect those transactions because such work would have then been automated owing to the transaction happening on a DLT and a rigid consensus mechanism. The only role of the Central Bank would be to act as an intermediary with secure IT systems put in place ensuring smooth transactions. The role of the Central Bank would be similar to that in traditional RTGS or NEFT transactions, where it is placed at the fulcrum of the system hence it will retain control over the entire transaction including features of the system, like admission, membership and due diligence. (ii) If the aim is to replace cash with a more efficient means of payment, the Central Bank should introduce a CBDC that is universally available – a public Distributed Ledger can be set to manage the payments and settlement of CBDC or the existing account-based infrastructure of commercial banks could be utilised where the CBDC can be directly transferred to the account of the individual. Tracking of transactions through CBDC’s poses major data privacy concerns to remedy these concerns the low cost transactions can be kept anonymous, this would reduce the compliance burden of data collection on the Central bank and a threshold can be decided upon by the Central Bank beyond such transactions would be monitored (Mancini-Gri§oli et al., 2018). Such a CBDC would aid in cutting major costs which the government has to incur to sustain the system of physical currency such as - the logistics of digital currency would come at a fraction of a cost, compared to that of physical currency, investment in setting up the requisite infrastructure for manufacturing and transportation of physical cash would be saved, the digital currency deteriorate over time, and won’t be vulnerable to falsifications if the requisite technological safeguards are implemented. iii) If a CBDC has to be made to innovate new methods of monetary policy and quantitative easing during financial crisis, the three must have characteristics for it would be universality of transaction, identifiability, ability to bear interest. It has to be traceable because this way the Central Bank would be able to track the amount of money which is being transacted. It would have to be non-interest bearing or bear a negative interest rate because we don’t want people to hoard cash. Hence, during times of financial crisis to flush money into the economy instead of issuing cash to the people which they might hoard or invest in some savings oriented, we can give them essentially provide them with CBDC’s which won’t bear any interest the public would have no other option but to spend it and increase the flow of money into the economy. This enhances the level of flexibility the Central Bank has when deciding upon quantitative easing policies because issuing of CBDC’s delinks credit and the payments mechanism. The Impetus For Issuing CBDC’s As enumerated in the earlier section CBDC can be tailored to meet unique requirements and essentially offer more functionality than traditional ‘cash’ in that regard. However, it is not just the versatility of the CBDC which is encouraging the Central Banks to adopt a digital alternative to paper and such shift can actually be argued to be motivated by concerns like potential influence of privately issued digital currencies, international trade and currency dominance. Privately Issued Digital Currencies The advent and growth of cryptocurrencies has posed a major dilemma in front of the Central Banks that whether privately issued currencies can offer competition to fiat currencies. Since most of the privately issued currencies don’t have a derivative asset from which they derive their value, thus they are vulnerable to price fluctuations based on their perceived future value by the market which makes them extremely volatile. However, what they lack as a store of value they lack as a store of value they compensate for with features like peer-to-peer cross border transfer, automated verification and settlement mechanism, the ability to have smart contracts encoded on them (Brunnermeier, James, Landau, 2019). All of this leads to the cryptocurrency having a reliable digital network which fosters the trust of their users in them, affecting their demand and supply which in turn determines their price. The idea of having these private currencies to gain popularity and permeate into a sovereign economy and conducting their own ‘monetary policy’ is what threatens Central Banks (Brunnermeier, James, Landau, 2019). Like every private entity, they would conduct their ‘monetary policy’ to suit their own private interests rather than public and the Central Bank would not be able to effect its own monetary policy through such currencies which could be disastrous for an economy. Moreover, the entities who are transacting in such private currencies would then completely be at the behest of such unregulated private issuers. Hence the money which has been denominated in such private currencies would not have any form of protection and be completely dependent upon market forces. In addition to their immunity from the monetary policies of the Central Bank, if such currencies were to fail, they would have negative systemic effects on the economy of that country which it might not be able to manage. Digital Dollarisation Digital dollarisation is the idea that once a CBDC gains sufficient international consensus it will become the dominant mode of transaction in which international trade will be conducted, thus becoming the de facto medium of exchange (Agur, et al., 2019). By building international digital networks a CBDC can internationalise itself and thus strengthen the CBDC’s and by extension the fiat currency’s function becoming global store of value and attain full capital account convertibility which in layman terms means that the individuals using the CBDC for international transactions could easily convert it into local currency without facing any restrictions (Agur, et al., 2019). Thus, countries with smaller or underdeveloped economies or even countries with stable economies for that matter are susceptible to the risk of digital dollarisation. If a country with large digital networks were to penetrate the market of such countries through its CBDC (owing to the virtues of global store of value and full capital account convertibility and seamless peer to peer transaction), the citizens of that country would also prefer transacting in that CBDC instead of their native currency. This would incidentally translate to the native currency becoming weaker in relation to CBDC. Important Considerations Despite the potential threat of private currencies exerting a greater influence on the economy or ‘digital dollarisation’ of some other CBDC instead of the native country’s there are a plethora of concerns which need to be addressed before a CBDC can be implemented. Security Concerns The technology which will act as the substrate of the CBDC is still unclear. Since the CBDC would be issued by the Central Bank itself, it has a colossal duty of ensuring that the CBDC remains secure from any form of cyberattacks. Any security breach with respect to CBDC besides from tarnishing the reputation of the Central Bank and stifling further growth and permeation of the CBDC, can also lead to an economic crisis for the country, thus making the technology extremely sensitive and high risk in nature. The Central Bank would have to go above and beyond to establish a security infrastructure for the CBDC before it is implemented and ensure that technology which will as the foundation of the CBDC is immune to any form of digital security breach, hacking or malware attacks. At this juncture it is important to emphasise that even if a CBDC implemented with the DLT as its base which is considered a secure technology when it comes to protection cyber-attacks (Frankenfield, 2021), would not be able to offer the same level of protection because the ledger would be centralised and be controlled by the Central Bank. A decentralised ledger is usually protected from cyberattacks because it has thousands or maybe millions of nodes acting as servers where the ledger has been replicated and the hackers have to hack 51% of those servers to make any changes to the transactions recorded on the ledger (Frankenfield, 2022). But in the case of a centralised ledger the hackers would just have to take control of a few servers and the entire reserve of CBDC would be at their disposal. Hence, a novel solution would have to be figured out with respect to the above solution. Data Privacy Concerns Data Privacy is another important metric which the Central Bank would have to clarify on in relation to CBDC. Since CBDC would be a digital form of currency no matter how, when or on which platform it is spent, it will always leave a digital print on the internet. So, any transaction done with a CBDC would inherently be traceable. It is clear that due to practices like money laundering and terrorism financing an anonymous CBDC is something that no Central Bank would be amenable, in a similar manner the common public might not be amenable to a CBDC which is traceable at all times. A survey conducted over three months on a ‘digital euro’ has found that a majority of participants spread around Europe preferred an offline privacy-oriented solution over an online solution with implications for anonymity and privacy (Ledger Insights, 2021). Sufficient safeguards should be introduced against such concerns ensuring that the data of the citizens collected is only used for the legitimate purpose it is being collected for (Purpose Limitation) and is stored only for the period necessary for processing (Storage Limitation). Adding to privacy concerns is the assumption that if the use of CBDC becomes widespread in an economy the Government might be able to abuse this system similar to that of ‘Social Credit’ system in China and deny you the right to use the CBDC in your possession, the Central Bank should also guarantee regulation against such practices (Kobie, 2019). Technological Literacy Technological Literacy can prove to be a major barrier for the adoption of CBDC. In developing countries where the population struggles with financial and technical literacy, to secure the success of retail CBDC the Central Bank would have to come up with an interface which is simple enough for everyone to access to it. In India where digital transactions have seen a significant due to the impressive implementation of UPI technology, cash still remains the prevailing medium of transaction (Reserve Bank of India, 2021). Thus, ease of use and awareness in relation to the technology remain crucial factors which need to be looked into because if the technology is not made accessible, the general populace will still be strongly inclined to use cash instead because it is the age old, trusted alternative. Commercial Bank Disintermediation Assuming that the costs of maintaining and transacting in CBDC is lower than the services provided commercial banks, this would spur a large movement from bank deposits to CBDC which will be maintained by Central Banks this would lead to a cash crunch for commercial where they would have to provide incentives to retain their customers. Commercial banks earn significant revenue from facilitating payments and if the Central Bank were to offer cheaper payments alternative via the medium of CBDC it would lead to further reduction in commercial bank profitability (Wadsworth, 2018). To remedy this commercial bank might take certain steps such as increasing the interest rates on their deposits on investing in high yield but risky assets putting more stress on their balance sheets (Wadsworth, 2018). This could significantly worsen the financial stability in an economy, which is why such structural considerations need to be kept in mind while considering the issuance of CBDC. In addition to this depositors might convert their deposits into CBDC if they become aware of a bank being under stress and this might to practically unstoppable ‘digital bank runs’. This change in role of the Central Bank from an ombudsman to that a competitor of commercial banks can have grave consequences for the entirety of banking system, which is why a hybrid system needs to be worked out, wherein significant safeguards are envisaged for commercial banks from the spill over effects of CBDC and they are also able to profits from the adoption of this technology. Monetary Policy Through CBDC the Central Bank can pass through the effects of monetary policy via individual CBDC holders. However, if the government wants the CBDC to effect monetary policy they would have to relax the assumption that a currency can’t be interest bearing (Wadsworth, 2018). The complications don’t just end there in countries with high inflation rates, they may choose to convert their cash into CBDC of countries with low inflation rates, such large capital movements via the medium of CBDC can greatly influence exchange rates and affect asset prices which also be needs to take into consideration (BIS, 2018). Likewise, in times of crisis if the interest rates on CBDC are higher than interest being offered by banks on deposits this can lead to a liquidity crisis for banks because CBDC would serve as a better store of value (BIS 2018). If the demand for CBDC is high the Central Bank might have to invest lower quality assets so that it could have a larger balance sheet to support the issuance of CBDC. All of this could worsen the financial stability of an economy which begs the question whether instruments like CBDC should be used to regulate monetary policy in the first place, when such tasks are already being conducted through traditional tools such as repo rate, open market operations, discount rate, cash reserve ratio etc. Conclusion CBDC with its properties like seamless peer to peer transfer of funds, cross border transfers, disintermediation and shift from paper leading to reduction of costs surely presents a lot of benefits and can be evidently touted as the next step for the advancements of nation’s economy. The fact that over 60 countries are researching on its implementation clearly indicates that they want to cash in on the first movers’ advantage and salvage the benefits which come with ‘digital dollarisation’ of their respective currencies. Nonetheless, owing to the disruptive nature of this technology, its scale of implementation, the external effects it might have, the ambiguities surrounding which have been discussed in the aforementioned section of this article, it is best advised to tread with caution. Any economy would only be able to reap the benefits of its CBDC if it’s able to navigate through the externalities which it will cause while interacting with a numerous amount of diverse economic participants.

The Information Technology Act, 2000 has been in force for over 20 years. The legal instrument governs the use of electronic documents and digital transactions in the country. The act aimed to provide legal recognition for electronic documents and ensure the security and privacy of digital information. The law has had several key provisions, including the establishment of the Controller of Certifying Authorities (CCA) to regulate digital signatures, the introduction of electronic contracts and digital signatures as legally binding documents, and the creation of an appellate body for cybercrime cases. At the time, the IT Act was considered a significant step forward in India's digital transformation. It created a legal framework for e-commerce, e-governance, and other digital activities, and paved the way for the growth of India's tech industry. However, over the years, the IT Act has become increasingly outdated and inadequate in addressing the challenges and opportunities presented by the rapidly evolving digital landscape. New technologies such as artificial intelligence, blockchain, and the internet of things have emerged, and cyber threats have become more sophisticated and pervasive. To address these issues and provide a more comprehensive framework for India's digital future, the government has proposed the Digital India Act. The proposed legislation seeks to create a new regulatory structure for emerging technologies and strengthen cybersecurity measures. It also aims to promote the development of a digital ecosystem that fosters innovation, entrepreneurship, and inclusive growth. However, one has to reckon the fact that regulations and statutes work in sync with the economies they are used to govern. In the case of the IT Act and even the Digital India Act, it could be understood that the role of technology co-operation has been key to India's seemingly huge advances, both in regulatory governance and information economics. This explains the necessity of the US-India Strategic Partnership on Information, Communication and Emerging Technologies (ICETs) and its needed elevation in early 2023. Thus, India's relationship with the United States has been important to shape its mettle as a technology power. In this article, I have explored how the ICET partnership and the upcoming Digital India Act would shape India's technology governance avenues. Confronting Horizons of Technology 2.0 and Technology 3.0 Together The proposed Digital India Act represents a critical milestone in India's digital journey as the world grapples with the growing power and influence of Big Tech companies such as Google, Facebook, Amazon, and Apple. These companies have amassed vast amounts of data and are using it to shape user behaviour, influence political outcomes, and dominate markets. The Digital India Act is aimed to address the challenges posed by these Big Tech companies by introducing measures to promote competition and protect user privacy with unwavering determination. Moreover, the Digital India Act aims to ensure a level playing field for all players in the digital ecosystem, including startups and small and medium-sized enterprises (SMEs). Now, what one can understand is that it is these big technology companies whose actions in corporate governance, digital connectivity, intellectual property rights and business ethics, have led governments across the world to build their own regulations and standards, not to just hold them to account, but also estimate how they can develop better regulatory infrastructure keeping up with the changes that ICETs undergo. To be fair, the European Union came up with the General Data Protection Regulation and then still is deliberating among countries and stakeholders about the impact of the proposed Artificial Intelligence Act. Despite these regulations being sophisticated and too specific on civil liability, digital rights and market economics, they are maximalist in nature. Similar concerns were raised by the US Chamber of Commerce. Read Regulating the Big Tech: Legal Workability & Dysfunction in Oversight Measures There are other issues which exist as well. Even when we analyse the state of regulation of big technology companies in the United States, the multi-sector impact that big tech companies may produce remains to be properly assessed. Alexander Jones explains this problem by taking transparency as a regulatory expectation in an article for International Banker. Jones argues that while authorities may impose requirements of disclosure and reporting, they may not be that effective due to the following reasons: cross-sectoral and cross-border nature of big tech activities; centrality of data flows and cutting-edge technology within the digital-platform ecosystem; large number and variety of entities within big tech groups, arranged in complex, layered organisational structures, making it challenging for financial authorities to understand their inner workings deeply. In addition, the institutions involved in making these technology products, systems and services are capable in creating complicated and inexplicable derivatives of the product/service originally provided which further complicates things when rights and restrictions of use related to proprietary information are adjudicated. In fact, these sub-sets, sub-products, derivatives and other possible knock-offs or modulations drive the trajectory of the Web2 and Web3 industries. There are certain Web3 products and solutions which on their own fail (like Metaverse), but their concept is used in the existing Web2 paradigms, quite interestingly. Spatial commerce by Shopify is one such example. These issues, in my view should be dealt by the proposed Digital India Act with a soft-touch regulatory outlook, which is suggested for a digital markets law subject to discussion through the Competition Commission of India. Read ChatGPT & the Problem with Derivatives as Solutions The Proposed Digital India Act as of March 2023 A draft proposal of the Digital India Act, not containing a draft of the Act itself was released. The presentation is discussion-based and explains what issues are necessary to be covered as a starter. Here is a representation of the points of focus with respect to the Digital India Act: Now, this Act is well-expanded and all-comprehensive if we look at its policy and legal positions. The Act is a part of the cyber law infrastructure that the Government of India intends to build up. This would for sure require a Digital Data Protection Act and some key amendments in our telecom regulations (I propose), the Competition Act, 2002 and the Indian Penal Code, 1860. It would also require to develop a Digital Markets Law which consists of a sector-centric regulator under the Competition Commission of India. We have to also consider the Draft Telecom Bill which is subject to public comments and consultations. Strengthening digital public infrastructure and Government-to-Customer Engagement (G2C) is a quite interesting thing to look out for. Then, developing an adjudicatory mechanism is an appreciable move, which focuses to develop a unified cyber jurisprudence. Since cyberspace is the basis for the digital world or the information economy, the approach seems quite clear. The Open Internet as per the Digital India Act I find the way Open Internet is categorised interesting. Let us unfold how Open Internet is categorised and further elaborated upon. So, the first category - Choice is important. It reflects the right to choose and use throughout cyberspace, laying the basis of an open internet as per the Act. Competition, the second category is in sync with Choice where Online Diversity may be related to the equality of opportunity one may get in digital opportunities, discourses and systems. That may also be related with the digital rights that this Act would provide. That leads us to Fair Market Access and Ease of Doing Business & Compliance. There is nothing new, but a clear categorisation was required in Indian law, which this Act may achieve for good. Whole-of-Government Response and Digital Public Infrastructure It is an imperative to realise that technology governance can be categorised into 3 folds of public interest and policy concern: Digital Public Infrastructure Regulatory Institutions Judicial Institutions & Dispute Resolution Mechanisms As a starting point, the proposal seems clear that a Whole-of-Government Response would be taken as the key element of this Act's approach of technology governance. As the proposal states: Whole-of-Government Response for a unified, coordinated, efficient and responsive governance architecture including an effective appropriate government structure, a dedicated inquiry agency and a specialised Dispute resolution/ adjudication framework It means that when any technology or data-related issues could come up, the Digital Public Infrastructure backed by a government structure and a dedicated inquiry agency would be on the run to help aggrieved parties. It is also appreciative that a dispute resolution & adjudication framework would be decided in the Act. This itself explains that the Government's focus on shaping technology governance is comprehensive. Standards for ownership of Anonymised Personal Data This is also one of the most important areas of concern, which the Act may cover, apart from disclosure norms. It would be intriguing to seek how the Government would try to determine ownership standards for Data Intermediaries. There is another concern which may help in shaping Ownership Standards - the Safe Harbour Principle and having different kinds of intermediaries. The yellow portions in Figure 3 reflect how the rights and liabilities of different intermediaries sometimes may intersect such that even the safe harbour principles applied in the contexts of A, B and C may also be in conflict. Now, a safe harbour clause inserted in any legal instrument implies certain context-based rights on the use and platforming of third party data and information. Imagine how complicated it could get, from a legal perspective where rights, liabilities and responsibilities of 3 intermediaries, for example could get in conflict with one another, both respectively and as a whole. Taking this into consideration, the Government of India, in recommendation, create principles of defining how certain product or service use cases lead to companies gaining the status of intermediaries and what kinds of intermediaries may be relevant or not. It may seem a complex question to answer at first. However, a complex adaptive method could be adopted to interpret and define such things by focusing on the genealogy and economics of innovation in such technology products and services. That makes the picture way clearer. Maybe, this Act would address this issue broadly. That would help in designating classes of intermediaries, both which are made in the past, and those which could be made in the future. Conclusion: the ICET Partnership and its Impact The fact that the Act is aimed to be made all-comprehensive explains how important the US-India Strategic Partnership on ICETs is. Most importantly, here are the points of critical importance from the Fact Sheet by the White House on the Strategic Partnership on ICETs, when it comes to the Digital India Act: Drawing from global efforts to develop common standards and benchmarks for trustworthy AI through coordinating on the development of consensus, multi-stakeholder standards, ensuring that these standards and benchmarks are aligned with democratic values. Launching a public-private dialogue on telecommunications and regulations. Advancing cooperation on research and development in 5G and 6G, facilitating deployment and adoption of Open RAN in India, and fostering global economies of scale within the sector. Let's take these points into consideration. Now, India's technology partnership with both the United States and the European Union have different meanings and purposes. With Europe, India aims to bridge gaps on attaining sophisticated inter-regulatory channels for digital connectivity. With the United States, the focus is on innovation and economic activities to bridge gaps on competition law matters. The reason is that India's competition law approach is tilting to incline with the US approach, from a market point of view. Europe and China's separate maximalist approaches of technology regulation (and even market regulation) could enable the United States and India to become significant technology regulators and enhance their regulatory sovereignty differently. Both the countries are addressing tech regulation dilemmas and even competition law issues as technology sovereignty is becoming essential day by day. The difference is that the United States is a long-run player in this which is not even able to take calculated decisions on regulating and banning Tiktok and related apps and companies. India, however, has developed a much clear precedent by banning Tiktok and as an emerging economy, it has a lot more leverage as compared to the US to shape market and tech regulations with a unique rules-based approach. The way the Department of Justice and the Federal Trade Commission in the US have conflicting approaches to antitrust is not faced in India, similar to how banks and stock markets are regulated in the US, considering the crisis unfolded due to the fall of FTX and the Sillicon Valley Bank. Indian regulators in finance, market and tech have been more conscious of such realities and while the technology partnership in multiple folds is modifying its embodiment amidst the fears of recession in the US, the India-US partnership has an economic edge over other regulatory players to act differently. This is where the Digital India Act become a globally relevant instrument and even help the Global South countries to develop their own regulatory standards comprehensively. While the US is betting on dealing with the risks at its best, even by learning from Indian regulators in certain aspects, India has a much open ground to incentivise the best regulatory environment for investors, start-ups and innovators under the Act.

ChatGPT has been embroiled in several controversies related to the AI-based digital products and services market. Concurrently, Google has introduced BARD, a ChatGPT competitor that draws inspiration from their LaMDA conversation technology. Now, there are multiple such use cases which have been proposed by entrepreneurs, content creators and big technology companies. The problem, however, comes in when the understanding of novelty & value behind such derivative "solutions" is not properly assessed. This is where the problem of using ChatGPT as a means to cater such business solutions comes in. In this article, I have analysed the legal and ethical aspects of designating derivatives made out of ChatGPT as kinds of digital products and solutions one could anticipate. The idea of this article is to formulate a legal approach to look at this practice only to see if some legitimate solutions can be generated from this approach. Henceforth, I have divided the line of enquiry into 2 parts: What could be the Derivatives or Sub-products that could be made via ChatGPT as potential solutions? How does it work in the market? What disruptions could it have at an observational level? How does this attempt to democratise ChatGPT via creating digital products/services as derivatives (or derivatives of derivatives) affect the future of work at fundamental and operative levels? I would also add that this article is limited to how Generative AI tools can be democratised to build derivative products/services as commercial solutions, and it does not cover other types of narrow AI applications. To know about ChatGPT and its impact on Technology Governance, read this article. The Basics of Creating Derivatives as Solutions When ChatGPT was made available for a Free Research Preview, which is still the current case, it was obvious for anyone to discern how many use cases could be observed or figured out, to provide services of many kinds. In my previous article on ChatGPT, I had discussed about DoNotPay as a proposed "use-case" to draft legal instruments and documents for normal use, such as civil liability, consumer law action, etc., especially for those who live in the United States, considering the exorbitant costs of handling such matters in the US itself. Here is a figure which explains how one can conceive a derivative product or a derivative (of a derivative) product. Now, to be clear, making a derivative is not hard. Yes, it is possible for someone to create a derivative or product out of ChatGPT, given that the underlying technology behind ChatGPT is based on artificial intelligence and natural language processing. One way to create a derivative or product out of ChatGPT would be to use its core technology, which is a type of machine learning called "transformer models", to train a new model with a specific focus or application. For example, a company might use ChatGPT's technology to create a chatbot or virtual assistant that can answer specific types of questions or help customers navigate a particular product or service. Another approach could be to use ChatGPT's technology as a basis for a new application that uses natural language processing. For example, a company could use the technology to develop a system that analyzes customer feedback or reviews and automatically generates summaries or sentiment analysis. Technologically, creating a derivative or product out of ChatGPT would require expertise in artificial intelligence and natural language processing, as well as access to large amounts of relevant data. Additionally, it would require significant computing resources, as training machine learning models can be computationally intensive. However, with the right expertise and resources, you can use the technology behind ChatGPT to create new and innovative products and applications. Creating a derivative or product from ChatGPT or any other machine learning model involves considering various parameters. Some of the key parameters that could be important include: Training Data: The quality and quantity of training data used to train the model are critical parameters in the development of a derivative or product out of ChatGPT. The dataset used must be relevant and large enough to ensure that the model can capture the necessary nuances in the input data. Model Architecture: The architecture of the model is also an essential parameter to consider when creating a derivative or product out of ChatGPT. The model architecture includes the number of layers, the number of neurons per layer, the activation functions, and other design choices that can affect the model's performance. Hyperparameters: Hyperparameters are additional model parameters that can be adjusted to optimize model performance. These include learning rate, batch size, optimizer, and regularization parameters, among others. Evaluation Metrics: The evaluation metrics used to assess the model's performance should be relevant to the specific use case of the derivative or product. Common evaluation metrics for language models include accuracy, perplexity, and F1-score. Deployment Environment: The environment in which the derivative or product will be deployed is also a critical parameter to consider. Factors such as the available computing resources, scalability, and reliability of the infrastructure can impact the effectiveness of the model in real-world use. Ethics and Privacy: Considerations around the ethical and privacy implications of the derivative or product must also be taken into account. The data used to train the model must be ethically sourced and representative, and the model's deployment should not violate any privacy laws. Let's declutter each parameter mentioned here. First, if you have training data, then it means that you have designated some parameters in the product development of that Derivative Product, which you intend to build. Now, this training data, is not the training data of ChatGPT directly. This data is attributed to the product you are making. However, there is no doubt that ChatGPT would be capable to estimate how this training data is used and is workable, at least at some level. In the lexicon of artificial intelligence ethics, training data comes under the ambit of ethical issues. The best one could proposed here is to understand how a derivative product could understand the training data to generate outputs. That is something which may require either a regulatory sandbox or another potential regulatory mechanism in place. Second, a model architecture may not be a generalised in the lexicon of AI ethics, unless it becomes necessary quantitatively where too many use cases are being tested, which have an adverse impact on the human environment. Third, hyperparameters become important but if their use case or market distribution, even for testing purposes is insignificant, then the least that could be expected is to create the technological safeguards by default and design, which are helpful. Fourth, Evaluation metrics, could be considered important, to achieve AI explainability. While training data needs to be proper and avoid those biases which could create adverse outcomes, evaluation metrics can be treated as an addition to understand how training data is being used. Fifth, the deployment environment is connected to how evaluation metrics reflect upon the effectiveness of the environment in which that derivative AI product is being tested. The better it is done, and the clearer it is understood, the safer it could be know if the training data is effective. Lastly, ethical and privacy concerns are obvious to happen and there is no doubt that such basic safeguards need to be maintained. However, a better measure to track down ethical concerns (since for privacy, design & default can be built) is to foresee the risks attached. There is a quantitative element to it, and that could be really helpful. Overall, there are many solutions and possibilities. However, data scientists and experts in Generative AI believe that the use cases of ChatGPT in the form of derivatives are over-hyped, and many a times they might not be that useful or perfect as aimed. A former Google AI Ethicist remarks about the use of proprietary information by ChatGPT and other LLM platforms, which raises concerns on data rights and anti-competitive practices: She said that the data used to train these models (GPT-3.5, or LaMDA) is either proprietary or just scraped from the internet. “Not a lot of attention is paid to the rights of the people in those data—also referred to as Data Subjects in the EU’s Artificial Intelligence Act—and also the people who have created those data, including artists, writers, etc.,” said Hanna, explaining that these people are not getting compensated and most companies are considering it like an afterthought. Let's now understand if creating such derivatives or derivatives of derivatives could affect market competition. Competition Law Concerns on Derivative Products There are multiple competition law concerns that may emerge when such derivative products and solutions are created. Although the concerns may saturate, a workable understanding is necessary to understand the hasty and overrated use of Generative AI tools. To make it simple, I have categorised the Ethical Dilemmas with Explanations in the form of a table. Naturally, these concerns are inter-related and it was necessary to categorise them. The dilemma that could be attached is whether such tools have a market-related impact. As it was discussed in VLiGTA-TR-001, our report for the Vidhitsa Law Institute, here are the working conditions which generate Artificial Intelligence Hype: Stage 1: Influence or Generation Determination An Artificial Intelligence hype cycle is perpetuated to influence or generate market perception in a real-time scenario such that a class of Artificial Intelligence technology as a product / service is used in a participatory or preparatory sense to influence or generate the hype cycle. Stage 2: Influencing or Generating Market Perceptions & Conditions The hype cycle may be continuous or erratic, but the real-time impact on market perceptions which affect the market of the product / services involving Artificial Intelligence technologies, as estimated from a standardised / regulatory / judicial / statutory point of view. The hype cycle may directly or indirectly perpetuate the course of specific anti-competitive practices. Beyond the real-time impact on market perceptions, the consecutive effects of the real-time impact may distort a limited set of related markets, provided that the specific anti-competitive practices are furthered in a distinct pattern. Stage 3: Uninformed or Disinformed Markets The features of the product / service subject to hype cycle are uninformed / disinformed to the market. It may be stated that misinforming the market may be construed as keeping the market just uninformed, except not in mutually exclusive cases. Stage 4: Misdirected Perceptions in the Information & Digital Economy The hype cycle may be used to distract the information economy by converting the state of being uninformed or disinformed into misdirected perception. This means that the hype cycle about a product or service may not clarify certain specifics and may cause the public or market players to distract their focus towards ancillary considerations, to comfortably ignore the fact that they have being uninformed or disinformed. Stage 5: Estimation of the Hype Cycle through Risk Determination In addition, even if preliminary clarifications or assessments are provided to the market, the lack of due diligence in determining the inexplicable features of the Artificial Intelligence technology in any form or means as a part of the product or service involves the assessment of the hype cycle with a risk-centric approach. Taking these working conditions into context, we may see a range of competition policy issues, which could be even relatable to Stage 3, 4 and 5 of an AI Hype cycle as per their working conditions in real life. Here is a table which simplifies and explains how can we map the impact of such derivative products based on the working conditions of AI Hype that we have developed in VLiGTA-TR-001. The Impact of Derivative Products on the Future of Work Now, such derivative products created out of Generative AI solutions, could have a disruptive impact on the future of work. However, the impact may be slanted or could not be that rapid as it is thought of. Here are some ways to understand what could be the possible impact: Disruption of existing job roles: As derivative products created using Generative AI Applications become more advanced and sophisticated, they have the potential to disrupt existing job roles. For example, a derivative product created using ChatGPT could automate tasks that were previously performed by humans, potentially leading to job loss or a shift in the type of skills required for certain job roles. Creation of new job roles: On the other hand, the development of derivative products could also create new job roles that require skills in working with and developing AI technologies. For example, companies that develop derivative products may require data scientists, machine learning engineers, and AI developers to create and maintain their products. Skill development and retraining: As derivative products become more prevalent in the workforce, there may be a greater need for workers to develop new skills or undergo retraining to adapt to the changing nature of work. This could include developing skills in working with AI technologies, as well as skills in areas that are less likely to be automated, such as creativity, critical thinking, and emotional intelligence. Ethics and regulation: The development of derivative products using Generative AI Applications also raises ethical concerns and the need for regulation. Companies must ensure that their products do not violate digital competition laws or perpetuate biases that could discriminate against certain groups of people. Regulators must also monitor the market to ensure that competition laws are not violated, and to ensure that companies are transparent about the limitations and potential biases of their AI products. Now, at a fundamental level, the development and widespread adoption of AI technologies like ChatGPT can lead to significant shifts in the labor market, as certain tasks and job functions become automated or augmented by machines. This can result in job displacement for some workers, but it can also create new opportunities for those with the skills and knowledge needed to work effectively with these technologies. For example, the development of ChatGPT-based chatbots and virtual assistants has created new job opportunities for developers, designers, and data scientists who can create and maintain these products. Similarly, the use of ChatGPT in the healthcare industry has created new roles for clinicians and researchers who can leverage the technology to improve patient outcomes and develop new treatments. At an operative level, the democratization of ChatGPT through derivative products and services can have a significant impact on the way people work, as well as the skills and knowledge that are required to be successful in the modern workplace. For example, the widespread use of ChatGPT-based tools for language translation and content generation has made it easier for people to communicate and create content across language barriers, but it has also placed a greater emphasis on digital literacy and technical skills. Additionally, the development of derivative products and services based on ChatGPT has the potential to create new forms of work and new ways of working, such as remote work, freelance work, and gig work. This can provide greater flexibility and autonomy for workers, but it can also create new challenges in terms of job security and benefits. It would however be intriguing to see how these derivative products are used to promote social and economic mobility and skill development. For example, if these products are used to provide training and educational materials to individuals who may not have access to traditional education, this could help to level the playing field and create more opportunities for people from diverse backgrounds. Similarly, if derivative products based on ChatGPT are used to help workers transition to new roles or industries, this could help to mitigate some of the negative impacts of automation and job displacement. For example, these products could provide tailor-made training and skills development resources to help workers adapt to changing labour market demands. Improving employability and job mobility. However, it should be emphasized that the impact of these products will ultimately depend on how they are implemented and utilized. If they are mainly used by enterprises to further automate tasks and replace workers, the impact on the future of work may be negative. However, if they are used to promote social and economic mobility and skills development, they may have a positive impact on the future of work. From a legal perspective, the use of derivative products to promote social and economic mobility and skill development is likely to be viewed more positively than their use to automate tasks and replace human workers. These products are less likely to be perceived as threatening competition or infringing intellectual property rights. However, legal issues may still arise, such as those related to data privacy and security. Conclusion: Too Early to Conclude To be fair, it is still early to predict the full impact of derivative products built out of ChatGPT and other generative AI applications on the future of work. However, it is clear that the development of such products could lead to both positive and negative consequences for society, and it is important to consider these factors when evaluating the ethical and legal implications of these technologies. On one hand, derivative products could provide new opportunities for social and economic mobility, and help people acquire new skills and knowledge. However, there is also a risk that these technologies could lead to job displacement or exacerbate existing inequalities, particularly if they are not properly regulated or managed. From a legal perspective, it would be suggestive to prepare specific legal solutions which develop consultative angles to address any anti-competitive and technology concerns.

The preamble of the Securities and Exchange Board of India Act of 1921 (hereinafter referred to as “SEBI Act,”) established that the Securities Exchange Board of India (hereinafter referred to as “SEBI Board,”) ultimately aims to promote development and regulate the securities market, while ensuring adequate protection of the interests of the investors therein. For this purpose, the SEBI board has often highlighted it as one of its primary duties to take any measures ‘as it thinks fit’ for the purpose of ensuring harmony in the securities market. In a similar context, one of the duties that the SEBI Board considers very diligently, is prohibiting fraudulent practices for the purpose of unfairly earning more money through the securities market. Similar to the practical working of any other market, even the Indian share market is prone to scams and frauds; a state which the SEBI Board constantly aims to reduce in order to maintain harmony in the securities market while also ensuring protection of the interests of the millions of investors who choose to trade in the exchange boards on a daily basis. According to the definition provided by SEBI’s Prohibition of Fraudulent and Unfair Trade Practices Regulations (hereinafter referred to as “PFUTP Regulations,”) which were passed on 17th July 2003, fraud is appropriately defined as, “Fraud includes any act, expression, omission or concealment committed whether in a deceitful manner or not by a person or by any other person with his connivance or by his agent while dealing in securities to induce another person or his agent to deal in securities, whether or not there is any wrongful gain or avoidance of any loss”. Thus, to be specific, an act of fraudulent trading refers to carrying out trading in the securities market that involves means of unfair practices for the mala fide purposes of misleading investors and agents. The SEBI Board is credited for detecting such frauds that affect involved parties in an unjustified financial manner, who are then appropriately tried according to the litera legis of the prescribed law. Recently, in the matter of V. Shankar v. Securities and Exchange Board of India (SEBI), the Securities Appellate Tribunal of Mumbai provided insightful guidelines when trying to infer who might be guilty of initiating the fraudulent trade practices in a company. The present is an article that will accordingly discuss the nuances touched upon in the decision given by the Securities Appellate Tribunal of Mumbai as on November 1, 2022. The SEBI Interference in the Scrip of DCHL By virtue of its powers specified under the SEBI Act, the SEBI Board conducted an investigation in the scrip of Deccan Chronicle Holdings Ltd. (hereinafter referred to as “DCHL,”) and found that the company along with its directors were guilty for violating several provisions prescribed by the SEBI, particularly between the months of October 2011 till December 2012. On prima facie understanding of the crux of the case, the order pronounced by the Adjudicating Officer of SEBI is credited for imposing a penalty amounting to Rs. 10 Lakhs on the appellant-company under Section 15HA of the SEBI Act, particularly for violating Section 68 (penalty for fraudulently inducing persons to invest money) and Section 77A (power of the company to purchase its own securities) of the Companies Act of 1956 (hereinafter referred to as “Act of 1956,”) respectively. The primary question that lies before us, is whether the promoters and the directors of DCHL were to be held guilty for the subsequent violation of these provisions. When SEBI Board initiated a show cause notice to investigate the books of the company, it was found that DCHL had gravely violated the provisions prescribed by the SEBI Board, since it was guilty for understating outstanding loans alongside other mischievous omissions in the annual reports for the financial years of 2008-09, 2009-10, and 2010-11, respectively. It was also reported that the company was guilty of carrying out buyback of shares which were more than 25% of the total paid up capital limit during the financial year 2011-2012 without having adequate free reserves; an act in itself that contributed to misleading investors in mala fide faith. Accordingly, it was contended that DCHL was in violation of Section 68 and Section 77A of the Act of 1956. In furtherance to this, it is pertinent to note that DCHL had failed to disclose material price sensitive information to the stock exchanges on the date of entering into an agreement of Deccan Chronicle Marketers and continued to provide them misleading financial information and overstated profits in their annual reports. After due investigation and analysis, it was confirmed by the Adjudicating Authority that charge was liable for artificially inflating profits to shareholders while there was actually a loss. Deciding the Liability; Board of Directors vs. Company Secretary The material question in any case of violation of the law is with respect to deciding the liability for such offence. In the instant case, since DCHL had also failed to appoint a Company Secretary, it led to further failure to disclose related party transactions and led to an understatement of outstanding loans and interest and finance charges etc. It is material to further state that since the appellant was responsible as the Company Secretary for DCHL for signing the public announcement made by the it on 6th May 2011 for the purpose of buyback of its equity shares, the appellant must be considered equally liable for violating Section 68 and Section 77A of the Act of 1956 read with Regulations 3 and 4 of the PFUTP Regulations and Section 12A of the SEBI Act along with the company and its directors. However, the same had been contended by the Board of Directors of the company in the present case, and it lies before the honourable court, i.e., the Securities Appellate Tribunal of Mumbai to determine whether the appellant, i.e., the Company Secretary in the instant case, shall be burdened with such liability thereof. Ultimately, the Securities Appellate Tribunal of Mumbai decided the case on its merits in the following manner: Fiduciary Responsibility of the Board of Directors of DCHL It is well-understood in the jurisprudence of corporate that there is a fiduciary duty imposed on the Board of Directors of any company to mandatorily verify the contents of any important document before approving it and letting the contents of such document determine the future undertakings of the company. Hence, in the present case, the fact that the appellant, i.e., the company secretary had been held liable for the penalties imposed by the Adjudicating Officer under Section 77A of the Act of 1956 after a perusal of Section 215 of the Act of 1956 clearly indicates that there is a fiduciary responsibility placed before the Board of Directors of DCHL to verify the contents of the balance sheet before approving it. Thereafter, Section 215(1) of the Act of 1956 also prescribes an obligation upon the secretary and two directors of the company to sign the balance sheet for further approval. After such ministerial task is given effect to, the company secretary then has to authenticate the contents of the balance sheet as approved by the Board of Directors, and does not mandatorily need to look into the veracity of the buyback offer document and its legal compliance, as such duty does not fall under the obligations imposed upon a Company Secretary. Thus, from the above analysis, it is clear to the Securities Appellate Tribunal that the question with regard to the verifying the veracity of the buyback offer document does not lie with the Company Secretary, but the Board of Directors of the concerned company. Understatement of Finances in Annual Report and Buyback Offer Document On a simple understanding of the roles and responsibilities of the duties of a Company Secretary, it is understood that Section 5 of the Act of 1956 allows a Company Secretary to act as the “officer in default.” However, on further interpretation of the said provision, it must be realised that merely being an officer in default does not make a Company Secretary responsible for the noncompliance of the company with regard to Section 77A of the Act of 1956. In order to hold the Company Secretary responsible for such noncompliance, the burden of proof lies on the company to establish that the Company Secretary himself was responsible for the noncompliance under Section 77A of the Act of 1956, such that the company’s Board of Directors must prove themselves innocent by disbursing that they had no role in committing such violation. However, in the present case, this specific finding has not been established by the Board of Directors of DCHL, making the case in favour of the appellant, i.e., the Company Secretary. Moreover, the fact that the Board of Directors were solely responsible for making such understatements in the balance sheet, leading to further misleading statements in the open offer has been clearly acknowledged by the Adjudicating Officer in the present case. Hence, from the above analysis of the facts and circumstances, the Securities Appellate Tribunal of Mumbai is satisfied that the Board of Directors of DCHL were the ones who were actually involved in understating finances in the annual reports and the buyback offer document, thus violating Section 68 of the Act of 1956 with a mala fide intention to induce investors by inflating profits of the company. Role of the Company Secretary In the instant scenario, it has been clearly established that the appellant, i.e., the Company Secretary only had a responsibility for complying with the resolution made by the Board of Directors of DCHL, and thus had no role in violating the provisions of the Act of 1956, and thus, must not be found guilty for the superseding penalties imposed due to the false and misleading open offer made by the company. In furtherance to the above, it has also been established under Section 19(3) of the Act of 1956 that the appellant, as a Company Secretary was to additionally act as a Compliance Officer, and thus, his role was limited to redressing grievances of the investors. Hence, the above findings in relation to the duties of the Company Secretary has appropriately satisfied the Securities Appellate Tribunal of Mumbai that the liability lies with the Board of Directors of DCHL, rather than the Company Secretary. Conclusion The present case in relation to the matter of V. Shankar v. Securities and Exchange Board of India (SEBI), the Securities Appellate Tribunal of Mumbai is credited for providing guidelines for deciding the liability in instances of fraud, with special focus on the duties of a Company Secretary. After insightful analysis by the honourable court, it is now a part of jurisprudence that the role of Company Secretary is limited to what it is prescribed to, and it must not be held as the officer in default despite Section 5 of the Act of 1956, when a clear fiduciary duty between the Board of Directors of the concerned company and its Company Secretary has been drawn. The burden of proof lies on the Board of Directors of that company to establish that they had no role in committing such violations, and that the Company Secretary is solely responsible for such offence. However, such a finding has not been established by the Board of Directors of DCHL, and hence, the Company Secretary should not be held liable for such violations, when in fact, the Board of Directors were the ones who are actually responsible for recklessly inducing investors by inflating profits of the company with a purely mala fide intention. References Harsh Dhude & Pranay Bhardwaj, Evaluating the Standard of Evidence Used in Insider Trading Cases, SCC Online (Jan 3, 2023) https://www.scconline.com/blog/post/2023/01/03/evaluating-the-standard-of-evidence-used-in-insider-trading-cases/. V. Shankar v. SEBI, 2022 SCC OnLine SAT 797.

Garima Dhankar, Legal Researcher at the Delhi High Court is the co-author of this article. Introduction Disputes in the modern day are increasingly time-sensitive and demand specialised knowledge of the relevant field. This requirement has resulted in the proliferation of arbitration institutions and the emergence of specialised forums. It has been observed that arbitration combines the characteristics of quasi-judicial proceedings with the capability of resolving specialized and highly specific subject matter disputes. This adaptableness is advantageous in art and cultural heritage disputes since parties frequently come from diverse cultural backgrounds having vastly specific issues such as copyright, traditional cultural expressions, authenticity and cultural property including sensitive non-legal issues of historical, cultural, commercial, moral, ethical, spiritual and religious nature. There is no independent area of law that can be accurately described as "art law" because the term and domain are very broad and inclusive. Consequently, there is no such thing as a conventional art conflict. Despite the fact that a work of art may be involved in a dispute, the claim itself is typically associated with problems that resemble commercial transactions, but involve niche considerations such as cultural and religious sensitivity, confidentiality, authenticity and legitimacy. It's not just the niche nature of the subject matter that sets art conflicts apart; there are other distinguishing characteristics as well, like Parties can be both public and private entities. Many situations involve numerous parties from various geographical locations and cultures including but not limited to States, museums, indigenous groups and artists. Art weaves the multi-dimensional cultural essence of India in one fabric. Indian culture can be reflected in a variety of ways thanks to the adaptability of the art market. It is indispensable to be familiar with the difficulties encountered by the industry if it is to fully realise its potential. Effective dispute resolution has emerged as one of the most pressing issues confronting the art sector in India. Disputes have become a major impediment to art investment in India due to the proliferation of contractual relationships and the absence of effective governing regulations. Art disputes are special in the way that they involve not only rights and obligations, but also sensitive cultural, religious, historical, and moral considerations. Litigation is still expensive, the suits drag along forever and the lack of specialised tools in addition to the lack of secrecy in court proceedings works as a disincentive for people to sue unethical practices and impedes growth of the industry. In light of a new era for art law issues, the Court of Arbitration for Art (“CAfA”) under the auspices of the Foundation Authentication in Art, based in Hague and the Foundation Netherlands Arbitration Institution, based in Rotterdam is a revolutionary step forward in the right direction in the field of alternative dispute resolution for art related disputes. The CAfA endeavours to deliver a confidential, effective and efficient resolution of art disputes by providing a tribunal composed of art experts addressing the major problems associated with judicially-administered art disputes globally. While the Indian Art ecosystem consists of a number of stakeholders operating in different capacities, including but not limited to artists, private art galleries, public museums, auction houses and private non-commercial art initiatives, the art industry in India is plagued by legal ambiguities, transparency and infrastructural support, exposing the industry to various disputes. Art Disputes: No Scarcity Art disputes have risen significantly in recent times. Conflicts stem from transfer of title in art or an antiquity item by way of licensing, gift or sale; repatriation of artefacts; fake and forged provenance of stolen or looted art; forfeiture claims; cultural heritage issues in the destruction of art; art loans; private and public sales and auctions; cross-border transactions involving import-export licensing; art finance; artist’s economic and resale rights; death of an artist; issues of ownership and succession concerning estates, trusts and foundations to name a few. Be it the long running Henri Matisse’s 1908 masterpiece Greta Moll dispute between Moll’s grandchildren and the National Museum; the closure of the 165 year old Knoedler Gallery in the United States over sale of fake paintings; the 2015 dispute between Asif Kamal and Christies’ for having allegedly put up a fake S.H. Raza for auction or the title claim put forth to the UK Government for the 12th century stolen Buddha Statue, with the advent of the CAfA providing an option to include a CAfA arbitration clause in art contracts, arbitration will gain popularity to resolve the rising art disputes in the USD 2 Billion Indian art industry. However, it is of utmost importance that we understand how the legal landscape in India addresses this opaque yet dynamic market. Arbitrability and the Indian Legal Landscape So far as the question of arbitrability is concerned, the Apex Court laid the foundation in Booz Allen & Hamilton Inc v. SBI Home Finance and ruled that basis the ‘nature of rights’ involved in a dispute, rights in rem, i.e. right of a person against the world at large and/or a disputes, whose adjudication is reserved exclusively for public forums as a matter of public policy were non-arbitrable while rights in personam, i.e. rights against specific individuals are arbitrable. In its recent decision in Vidya Drolia v. Durga Trading Corporation, the Supreme Court laid down a "four-fold" test to determine the arbitrability of disputes. The Apex Court ruled that disputes are not arbitrable when the cause of action and/or subject-matter of the dispute: relates to actions in rem, that do not pertain to subordinate rights in personam that arise from rights in rem; affects third party rights, have erga omnes effect, require centralized adjudication, and mutual adjudication would not be appropriate; relates to inalienable sovereign and public interest functions of the State; and is expressly or by necessary implication non-arbitrable under a specific statute. In 2014, an arbitration award was rendered is a case where genuine art was maligned putting an end to a four-year legal tussle over the validity of a 126-year-old Raja Ravi Varma painting and declaring the painting to be a genuine based on the certification of antiquity authorized by the Archaeological Survey of India (“ASI”) as governed by the Antiquities and Art Treasuries Act, 1972 (“AATA”). Awards that stem from non-arbitrable disputes, such as those involving title, fraud, or copyright ownership, are not enforceable in India under Sections 34 and 48 of the Arbitration and Conciliation Act, 1996 (“1996 Act”). Cases pertaining to art related frauds rely on specific facts and circumstances of each case, with judicial precedents indicating arbitrability in cases involving internal affairs of parties as seen in A Ayyasamy v. A Paramasivam & Ors. Although Section 26 of the 1996 Act exists, allowing parties the liberty to appoint experts, where an expert like the ASI is appointed and the tribunal disregards the opinion/findings of the expert, capitulating to a Section 34 challenge. Another aspect to consider is Limitation and Section 21 of the 1996 Act. Issues such as ownership, title in art disputes come within the limitation period for ‘declarations’ which commences from the date on which ‘right to sue’ exists first. For contracts containing arbitration clauses where Indian Law is the chosen law, the clause survives the termination of underlying contract and arbitration can be invoked within three years from the date on which request for that dispute to be referred to arbitration has been received by the Respondent. The AATA regulates the possession and trade of antiquities and art treasures, to prevent smuggling and fraudulent dealings in antiquities. The Apex Court, in 2019 gave the AATA the overriding effect in case of a conflict with a general law covering the same aspect in Department Of Customes vs Sharad Gandhi Proprietor. Section 24 of the Act obligatory on the ASI or an expert advisory committee appointed in the proposed in the 2017 bill to classify an object as an antiquity or art treasure. Even the tribunal in the 2014 arbitration concerning the Raja Ravi Varma painting discussed above gave primacy to the certification of antiquity authorized by ASI. The Courts' approach, particularly in cases of artists’ resale royalty where Section 53A of the Copyright Act, 1957 comes into play in cases of resale royalties and the Intellectual Property Appellate Board (“IPAB”) tends to give a stricter interpretation of the law as opposed to harmonising the law with the cultural and heritage values of the artwork, is another reason for prolonged and unresolved disputes plaguing the art industry. Not to forget, the incompetence of IPAB in terms of infrastructure and personnel to effectively and efficiently resolve disputes frequently causes the art world to reject court orders, resulting in unclear situations and further hurdles. Conclusion Art industry in India and worldwide has started to boom and reinvent itself after the turbulence and macroeconomic tremors caused by the Covid-19 Pandemic. Past years have been manifested by events that tested us to consider aspects of the market that the art industry had become uneasily familiar to overseeing. While 2022 was just as rich in creativity, inspiration and novelty as 2021, it remarkably showed an appetite for added systemic and complete transparency and accountability. Aside from the two art-focused arbitration bodies (CAfA and WIPO) the usual arbitral institutions lack art-sector expertise and a handful of art experts on their respective roasters. With the lack of precedents in the public domain, the art world demands strong confidentiality and anonymity. Section 42A added to the 1996 Act by way of the 2019 amendment exhibits several anomalies that have a natural tendency to jeopardize proceedings in a rapidly expanding and commercialized industry. To conclude, arbitration is still an unchartered territory for the art market and its stakeholders. With the current Indian arbitral jurisprudence inadequate to be supportive of the art industry, in addition to setting out standard dispute resolution clauses specific to art industry in the contracts and art experts as neutrals, there is a dire need for strengthening the alternate dispute resolution services on offer and being better connected with the art world for it to grow and expand exponentially on the demand side. About the Author Tushar Behl is an Advocate, practicing at the Delhi High Court and Garima Dhankar is a Legal Researcher at the Delhi High Court. The opinions expressed in this article are those of the authors. They do not purport to reflect the opinions or views of Indic Pacific Legal Research LLP or its members.

Research is important for human life. The idea that one must think and analyse realities instead of merely accepting what is seen or observed is a healthy notion and societies have developed research skills with time. Often what happens is that the connotation towards research thinking shapes with time, and advances with time. Yet, it depends how research trends grow and how people as human beings become the stakeholders of research. When it comes to India's legal fraternity, the research landscape has been quite bleak and it has become necessary to address the narrative of enabling legal research as a must skill for law students and professionals. In this article, I have critiqued the real-time state of legal research in India, with perspectives on how institutions, governments and individuals contribute to the same, with some real propositions. Researching vs "Paraphrasing" Indian Legal Literature Research, in general, due to its roots in the academia, cannot be disjointed from education. Even in the case of corporate research, the element of research skill requires specific educative measures and it is obvious to discern that while education and research are distinguishable, they are not separable from each other. This is where we have to understand the realities and problems associated with India's legal research landscape. For starters, India's legal education is subject to its socio-economic realities. To be honest, the higher education landscape of law in India can be judged by estimating how worse the education landscape is for any social science subject. Now, people or any person might say that law is a technical field. However, it cannot be denied that people neither teach nor study law as a technical field (at least a majority of them and not everyone). In fact, legal education in many higher education institutions is mediocre as if the educationists hate social science and law. The problem lies with this rote learning mentality but another problem which exists is how the perception is taken forth. The problem is that law and social sciences as fields are not taken seriously and considered as outliers. Many still think that studying an LLB course is merely a formality like a BA course. Let's take a simple example. Now, what is researching in law? It means you have to analyse questions of law and research their scope, value and extent in order to suggest legal prescriptions. Researching literally means to contribute something distinctive if not innovative. However, Indian law in many areas, including public law, fails to evolve because many legal notions and concepts are merely "paraphrased". This happens because of a fallacious perception shared that all legal knowledge is confined in bare acts, commentaries, academic journals, and text books. So the notion has become that if you are not able to find any source for certain ideas, you cannot even propose the idea. This for sure does not happen in major law schools across India which are flourishing. However, in many (or most) law colleges and law schools, the reality cannot be avoided. Plus, it is also observed that the model of National Law Schools and Government Law Colleges, upto a limit of capacity can build individuals who can help elite institutions including the Union Government and other State Governments. Beyond that, I do not think NLUs and GLCs can have a mass-level impact to build legal professionals that could be so much helpful. There is nothing unjust about this reality because this happens with the IITs, IIITs, NITs and even the IIMs as well. Mass-level education and skill generation is needed which must be backed by market formalisation and not mere government actions. Perhaps that need a unique approach towards enabling legal education anyways. Nevertheless, legal research is not rote learning and must be dealt as a critical skill. Research as a Skill is Precious Now, research as a skill may be considered limited because of a perception that it is useful merely for writing papers, reports and documents. However, legal research in general is multi-purpose and is at the heart of career building. It also reflects an individual's dedication towards learning concepts and ideas to solve problems. As former L Nageswara Rao, former Supreme Court Judge (India) had said: A lawyer should become a problem solver, a conflict manager. Litigation is only a subset of lawyering skills. While predatory publications and journals exist in India, and many law students, scholars and professionals in India find it hard to publish genuine work, research must be regarded as an explorative and helpful skill to build career opportunities. This begins with multiple avenues by recognising the problems that exist with Indian higher education and expanding the purpose of lawyering. A market-centric approach has to be a must for someone who enters the legal profession, where they should develop legal research skills not to merely "write papers" and "projects", but to solve complex problems, by doing any of it: solving, understanding or analysing. When research basics are strong, they help in build other sub-skills or additional skills in line with career and legal domain choices. For example, a good tax law researcher will try to understand certain aspects of tax accounting. Another example could be someone in the field of intellectual property law, where a person well-versed with the application of IP rights, can also understand the economics behind the product/service/invention. There are such soft skills which come in naturally when one considers enhancing research skill an important task. It is very much reasonable to care about developing legal research skills beyond writing and drafting skills (which have their own value and purpose, of course). Market and Domain Choice For a law student, who has to opt legal fields for their career purposes, one may suggest to learn some basic fields such as constitutional law, contract law, international law and others and then opt for those 3-5 fields for building an effective legal career. Now, in many law colleges, due to the old nature of the curriculum, law students do not get that opportunity to shape their learning trajectory in that way. It could be suggested that while certain aspects of the Bar Council of India syllabus may remain mandatory to study, it should be a must that for the last 2 years of a 3-year LLB course and the last 3 years of a 5-year (or 7-year) integrated LLB course - colleges may open up options for the counselling of students to let them choose those 3-5 areas of law in which they would like to build up their careers. They can still opt for some mandatory courses to be taught but students must be given the choice to choose those courses which serve their purpose. There is another aspect connected with research skills and career choices - internships. For any law student who has to undergo internships, I would like to recommend that a soft regulation approach could be very much reasonable. The reason is that internship duration during a summer or winter vacation might not work in the case of many colleges, and when many colleges fail to offer skill-based legal education, they must let students opt for internships, virtual or physical or hybrid. There is no need to create hardcore standards but a soft and flexible approach on letting students intern at offices would be very helpful to keep their research skills being evolved. If obviously students are not interning or diverting from their commitments, colleges can take action and examine the matters accordingly. However, having stringent guidelines do not help much here. A third aspect to discuss is market preferences. Students have a FOMO problem where they fear by finding out how other students choose certain legal domains, skills or internship opportunities, only to imitate them for some "social circle" or "isolation" reasons. This is not the right approach because people have their own skill sets and interests. They must be passionate about what they wish to work on and cannot have a "one-size-fits-all" approach. They must opt for any opportunity - an internship, a research work, a competition or anything they wish to, which is reasonable to their suited needs. A herd approach towards this is problematic, and if such an approach is taken, a student does not even know if the things they have opted help them to grow. This also downgrades their research skills, which then ruins their career opportunities due to an obvious reason - your research skills get disoriented and you get confused unless in exceptions, you do have versatile skills and experience to understand every legal field, quite simply. Building skill specialisation is necessary and students must avoid having the Fear of Missing Out to orient their legal research skills effectively. Research as a Service Sector Economy New research shows that research in many fields including social science is becoming less disruptive. Due to the money and job security factors that involve academic research, since publishing in an indexed journal is necessary in many institutions, a lot of people frankly do not even read the research. Here is an insight from an article written by Daniel Lattier: About 82 percent of articles published in the humanities are not even cited once for five years after they are published. Of those articles that are cited, only 20 percent have actually been read. Half of academic papers are never read by anyone other than their authors, peer reviewers, and journal editors. In fact, research is not merely driven by outputs. The people who contribute to a research economy, are fundamental to those outputs received. In an article on research as a service sector economy, Paul Nightingale and Rebecca Vine discuss certain important points: If research isn’t valuable for generating transferable discoveries, why is it so valuable in an information-intensive service economy? One reason research is so important, is that as the economy has changed and demand for experts has increased. As we noted in a Treasury report over 20 years ago, often the most valuable output of research is ‘talent, not technology’. The ‘post-graduate premium’ that having a Masters qualification adds to starting salaries is evidence of this. But why is expertise so valuable? Experts don’t just know more than novices, they understand things differently, drawing on more abstract, ‘deeper’ representations. Research on chess-grandmasters, for example, shows that they understand chess piece configurations by seeing patterns. They can see a Sicilian defence, while novices just see a selection of chess pieces. Their expertise enables them to configure chess positions more effectively and solve problems more rapidly. They draw different conclusions than novices, typically starting closer to more robust solutions, finding solutions faster, and exploring fewer dead-ends. Another article published by Nature explains about the state of PhDs across the world as of 2022 and 2023: Universities in a small number of high-income countries have reformed, or are reforming, PhD assessment. But in most places, and especially in low- and middle-income countries, a candidate’s work is still evaluated using a single-authored dissertation. This is ‘defended’ before a scholarly panel in what is still sometimes called a viva voce (‘with living voice’ in Latin), a nod to its nineteenth-century origins. And in many countries, candidates must publish in a journal before they get a PhD, something that critics say could fuel predatory publishing. Now, consider these excerpts and take India into perspective. Legal research is a valuable economy, which has its own value attached. However, not diversifying the purpose of research skill creates monotonous professions which has 2 opposite sides - one, that you have a herd of people in the most "popular" fields of law doing nothing significant and the other, that you now have so many specialisation groups that the purpose of distinctive research groups gets lost since most of the "specialisation groups" do not offer anything productive or useful. In both the cases, the field of law is downgraded and most suffer. This is why it is important to take legal research as a serious skill. Also, research writing or legal writing is very different from legal research, because the presentation of research can be a subordinate skill, additional skill or a soft skill depending on the nature of tasks. Thus, it is futile to consider that research or legal research itself as a skill would not help you in building your careers. How Language Models Change Legal Research Trends We might think that ChatGPT could be useful (I have discussed the same in this article). However, AI itself would not change things for you. Nor it would be the case that AI would replace lawyers. In certain cases - AI may help because you may automate your writing and template development work to these language models. Otherwise, it sometimes becomes a challenge if crisp writing and analysis is needed, or too much descriptive analysis is a need in presenting research. Sometimes, presenting things in the form of analogies and not a story-like or description-based narrative in research works could be really helpful. The reason I am pointing this dichotomy out is because - there is a grown and overblown misperception (some even consider it a soft skill) that just because you write long enough, you are filling up the pages for a "research". While description is required, how you write a research paper or howsoever and wherever you present your research, is actually limited by your perception of the audience. For example - you as a PhD scholar would write a paper that journal peer reviewers and the "scholarly" audience even understands. Does it work for industry professionals? Not necessarily. If you are drafting a compliance analysis report on M&A (for example), do you need to be poetic or too much descriptive, theoretical and flamboyant when it comes to your writing? Not at all. You have to be specific. In fact, that is exactly what Indians expect from court orders and judgments that like it is the case in the UK and US (even the EU and Singapore), Indian courts must avoid authoring judgments which are - for no reason - 600 pages long (although there are strategic and governance "purposes" why certain judgements and their interpretive and descriptive portions are so long). It is also about the peer group associated with you. That is not something which an AI can tell. Hence, while disruptive tech solutions are being used, I propose that people should focus on crisp and succinctly descriptive writing approaches, as the soft skills complementary to their legal research skills. If they approach it that way, it works and they can attain skill mobility, on a positive note. Conclusion To conclude, research is a broad term that encompasses various forms of inquiry and investigation. While publishing papers is one way to disseminate research findings, it is not the only way. Research can also involve developing new products or technologies, improving existing processes or systems, or contributing to the growth and development of industries and markets. The goal of research is to generate new knowledge, insights, and understanding that can be used to improve the world around us. Research is like planting a seed, it takes time and effort to grow, but the end results can be bountiful. Just like planting a seed in the ground, research involves identifying a problem or area of interest, gathering information and data, and then using that information to generate new ideas and solutions. These solutions can take many forms, from new products and technologies to improved processes and systems. For example, imagine a legal researcher who wants to study the impact of a new trade agreement on foreign investment. They would have to start by researching the agreement's text, understanding its provisions, and analyzing how it would affect the rights of investors and the host country. They would have to research the relevant legal principles and doctrines such as the fair and equitable treatment, and the most favored nation clause. Then, they would have to look for case law or arbitration awards to see how similar provisions have been interpreted in the past and how they are applied in practice. After gathering all the relevant information, the researcher would then be able to provide recommendations on how to improve the legal framework to better protect the rights of all stakeholders. In fact, a legal researcher with expertise in investment law could have a variety of career opportunities in both the legal and non-legal fields. Some examples include (in descending order): Academia: Teaching and conducting research in investment law at universities and research institutions typically requires a high level of expertise and knowledge in the field, as well as a graduate degree such as a PhD. Law firm: Providing legal advice and representation to clients on investment-related issues typically requires a law degree and a strong understanding of investment law. In-house legal counsel: Advising a company on legal matters related to foreign investment and trade typically requires a law degree and experience in investment law. International organizations: Providing legal and policy analysis on investment-related issues at organizations such as the World Bank, International Monetary Fund, or the United Nations typically requires a graduate degree and expertise in investment law. Government: Providing legal and policy analysis on trade and investment issues in government agencies typically requires a graduate degree and expertise in investment law. Non-Governmental Organizations (NGOs): Providing legal and policy analysis on investment-related issues and advocating for human rights, environmental, and social responsibility standards in investment at NGOs typically requires a graduate degree and knowledge in investment law. It's worth noting that some opportunities may require a law degree, while others may not. Some positions may require more experience or expertise than others, and some may be more suitable for someone who is just starting out or still growing in their knowledge and skill in any legal field. What do you think? My team at the Vidhitsa Law Institute of Global and Technology Affairs (VLiGTA) believes that people deserve to understand how to chart their career paths and shape their research skills as the integral element of their career. So, here is a request. We are taking a feedback survey to understand the aspirations of Young Indian law students, scholars and professionals where you can express which legal skills would you like to opt and how do you understand shaping your career trajectory. We'd be indebted to your insights and feedback.

Please note: this article is a long read. The lack of a standardised approach to data collection, privacy assessment, and controversy surrounding the recent investigations[1] indicate challenges that are not initiating traditional anticompetitive scrutiny.[2] The debate on the intersection between competition law and privacy constitutes a major challenge for the existing competition law framework. The notion of privacy has achieved extensive attention from academics and adjudicators, indicating its dynamic nature.[3] The unprecedented magnitude of data collection could raise challenges for both society and legislation, as it has emerged that personal data is seen as a tradable commodity,[4] placing companies in a position where the data helps them to achieve a stronger position in a market. The aspects of personal data protection have had a numerous impact on the framework of competition law — from the anticompetitive agreements to abuse of dominance or merger control. The merger control and abuse of dominance related to competitive harm through the access to substantial customer data; the price-fixing cartels are replaced by irretraceable algorithms based on access to Big Data. Online platforms offer a high quality of digital services and products to users without imposing any monetary price, however, they keep obtaining revenue from the advertisement-based business models, based on collection and procession of data. Examples of such networks are extensive and cover the platforms including Facebook, Youtube or Google. The business models are ambitious without a clerkly defined context of personal data. As would be noted below, the twofold features of their business model might have both advantages and disadvantages for market participants. The more data is collected and processed, there are higher chances of valuable correlation, information and prediction to be obtained. Such data is then used to improve the quality of both paid and free services, and to create new ones. Therefore, the practice of online firms to collect and process exceedingly large amount of data through the use of advanced algorithms to reveal trends, associations and patterns of their users, deserve special attention of competition authorities due to their novel dimensions to market power. The rapidly evolving digital economy raised challenges at two distinct levels: practical and policy levels.[5] The former concentrates on the added complexity in the assessment of the anticompetitive behaviours and conducting a dynamic enforcement assessment, which includes the additional challenges in the competitive pressure, and self-correctness of markets. The latter focuses on the novel competition dynamics, which raise the issue of the normative scope of competition enforcement. Such analysis is often important to arise with optimal use of competition law, and broadly — its goals. There is a broad consensus that the digital economy is a key driver to future prosperity, which, unquestionably has revolutionised business models, services/products, and social interactions. Furthermore, it is also undisputed that the digital economy has introduced new constraints in delivering innovation, efficiencies, and consumer welfare, as well as stimulated market dynamics. The article provides a basic discussion of the unique features of the digital free technology economy and discusses the potential limitations of the EU competition legal reasoning in the cases concerning privacy breaches. In essence, this article is about the Big Data-fuelled industries in transition which, because of significant developments, also highlights the difficulty in anticipating the new structural form of the industry. In terms of the normative debate on the objectives of competition law within privacy concerns investigations, the discussion is provided in the doctrinal context. The assessment is carried out concerning the current doctrine on the competition law goals, and this is going to act as the foundation of the article, allowing to deduce the favourable objectives of the competition law within privacy concerns investigation. In contract, socio-economic research on the context of privacy investigations would not be appropriate, due to its extensive nature on the socio-economic consequences of digital technologies and its impact on consumers’ lives and would take away the main focus of this research. Setting the context: the proliferation of privacy value and unique nature of the digital economy The aspects of Big Data and the digital services have attracted a lot of attention of academics, regulators, businesses and consumers. Unquestionably, the data collection and procession have become a central element of many digital platforms, which some reach a huge number of users. Digital platforms have become an inevitable part of commercial and social interactions, and the use of data is deeply grounded in the aspects of business-to-consumer relation. It has been widely discussed that the extensive data collection creates challenges for antitrust regulations which aim to preserve competition. The concept of privacy might be defined both in a broad and narrow sense. Unquestionably, any breaches of privacy affect a great number of peoples and could potentially compromise the process of democracy.[6] Yet, the precise contours of privacy effect constitute a subject of extensive academic discussion. Many perceived the EU legal order as offering the most attractive personal data protection. Article 16 TFEU serves as a basis for the EU data protection.[7] Further protection of personal data is offered by the Charter of Fundamental Rights of European Union, where Article 8 recognises personal data as a proactive right that reaches being individuals’ protection against the intervention of a state.[8] As per Article 8 of the Charter, personal information of individuals could be proceeded by anyone, including the State. Such a wide right is subject to Article 8(2) and (3), requiring any information proceeding to be fair, transparent and lawful for individuals. The protection has been more recently ‘enriched’ with the implementation of the General Data Protection Regulation (GDPR).[9] The GDPR’s fundamental principle is the requirement to establish a legal basis for personal data processing,[10] requiring of a data subject’s explicit consent. Under the GDPR, the processing involves any activation which could be pursued with personal data, defined as any information acquired relating to natural persons, and allows for their potential identification. The GDPR also introduced clarity of its regime by defying key issues, such as the definition of ‘data subject’ as any person of whom data is collected;[11] and ‘data controller’ which refers to any person that proceed the acquired data.[12] Importantly, the key feature of the GDPR’s regime is a consent, which has to be unambiguous, specific, informed and freely given. The GDPR strengthened the protection of personal data and, simultaneously — users’ privacy. The GDPR sets a basic required for the effectiveness of the legal consent for the data processing, which requires the consent to be specific, unambiguous, freely given and informed;[13] granted by individuals by clear affirmative action, or by a statement, which signifies a consent to proceed their personal data. In this respect, the GDPR represents a twofold nature: individuals are asked to consent for any data proceeding making it clear that a digital platform or services would rely on their data and consequently have a right to be informed about the way their data would be proceeded,[14] whereas the data controlled is obliged to perform the data processing obligations with the guarantee that the data would be processed to the extent which is well-grounded and demonstrable as agreed by individuals. Generally, there is no ex ante choice available to the individuals, under the EU data protection law, as to whether they want their personal data to be processed. Although consent is required, individuals are unable to thoroughly consent to a real purpose of data processions. An attempt to define privacy from a competition law perspective could be witnessed by the Bundeskartellamt’s (BKA) Facebook case. The assessment of the privacy protection rights in the case begins with a simple principle: personal data processing can only take place once data subjects agreed to their data being processed,[15] or when data processing is granted by the law.[16] The BKA took an approach of a data protection authority and explained that the Facebook’s T&Cs were deemed as appropriate within the remits of the GDPR, noting several points from privacy protection’s perspective. Firstly, the BKA noted that Facebook’s users were not aware of the means to which Facebook collected and processed their personal data, which constituted a not genuinely and well-grounded consent from their users. Also, users were not likely to expect that Facebook also analysed the data from different websites.[17] Objectives of EU Competition Law EU competition law rules have been clarified through different case law and official publication over the years, with its key objective being often proclaimed to be: “the creation and preservation of an open single market promotes an efficient allocation of resources throughout the Community for the benefit of consumers.”[18] Hence, the promotion of market integration appears to be a key feature of competition law. Yet, the EU Commission safeguarded the market competition as a means of consumer welfare enhancement, ensuring an efficient resources application,[19] as well as protecting ‘not only the interests of competitors or consumers, but also the structure of the market and, in so doing, competition as such.’[20] The unique DNA of the EU competition law by its ethos might be challenging or controversial, as lacking clarity over pursued goals. The competition law values and goals might overlap with each other or reveal some conflicts. Hence, Ezratchi suggested that their implementation could require trade-offs between the goals, which could introduce further ambiguity or balancing points.[21] The above considerations ought to be interpreted in the scope of wider European normative values, ensuring the consistency between the EU’s policies and activities. Arguably, the EU policies would be implemented by considering social protection,[22] consumer protection,[23] public health,[24] equality considerations,[25] transportation,[26] regional development, investment[27] and environmental protection.[28] Yet, this multitude of goals (its position within the wider normative EU values) is unquestionably challenging, due to its effect on the desire to engage in economic analysis. This section applies the findings from the above discussion to assess the normative objectives of EU competition law, which could potentially apply to the anticompetitive investigations with the apparent privacy breaches. The section analyses the keynon-welfare and welfare objectives ascertained to the EU competition law regime. As discussed above, the concept of privacy might be defined both in a broad and narrow sense. Unquestionably, any breaches of privacy affect a great number of digital users and could compromise the democratic processes.[29] Yet, the precise contours of privacy effect constitute a subject of extensive discussion, assuming that the debate is more complex than primarily anticipated, as reliance on free high technology services and platforms does not necessarily evidence in distributing which objectives should competition law pursue. Hence, a further question might be asked: should we aim for protection of competition or consumers or both? The debate appears to be fluctuating around the assessment for the intervention desirability, based on better knowledge about the privacy concerns instances. In this respect, an assessment of the rationales behind each of the goals functions as a key prerequisite in undertaking the nature of privacy concerns, which could influence the rationale behind authorities’ investigations. The literature on EU competition law appears to suggest a multitude of different competition law goals being pursued, which at the different levels act as distant from each other to the extent that the debate amongst them becomes tenuous. The debate on the competition law goals is questioned on several levels of assessment. Firstly, the theoretical underpinning questions why competition law allows for such an objective, often put forward to the theoretical perspective to comply with political goals. The second underpinning bases on the assessment as to the origin from a particular goal, which later allows to rank the goals on its normative levels. Lastly, the underpinning focuses on the goals being derived from case law, or objectives pursued by the Commission or any other competition authority.[30] Since this research considers the intersection between competition law and privacy, the emphasis is also placed on the coherency of the legal arguments pursued by the EU Commission. Hence, the debate revolves around the interpretation within the framework of Article 102 TFEU, which aims at the prohibition of the abuse of a dominant position at the core, protecting the EU’s internal market.[31] The discussion in this section revolves around three key objectives of competition law, which are demonstrated considering the legal tests applied by the EU Commission, namely: protection of competition, protection of consumer welfare and efficiencies. The assessment of the previous EU Commission indicated that consumer welfare might be one of the key elements of competition law. Yet, simultaneously, the set of investigation is based on the opposing objective of protection of competition law, as originating from the competition law rules. Equally, the third objective of efficiency is based on the assessment of market integration, as a key prerequisite to improve the prosperity of the EU. The assessment of privacy concerns within the remits of competition brings these three elements with each other. Hence, the section considers only these free objectives. Furthermore, as the discussion indicates, the BKA’s Facebook case remains the sole proceeding involving an intersection between competition law and privacy concerns. There is no legal equivalent available at the EU level. In this respect, the further discussion is enriched by reference to different proceeding involving digital services and products. Non-welfare objectives in the assessment of privacy concerns Protection of competition structure and competition The core differentiation in this section is following: the term ‘protection of competition' describes situations to ensure no reduction in the processes of competition, whereas the concept of competition describes the market with multiple competitors.[32] Potentially, the current competition policy narrative aims at effective competition processes, aiming at the protection of competitive structures, and subsequent protection of competitors on a market.[33] Furthermore, the assessment of competition processes protection, within the privacy protection cases, would be based on the assumption that certain digital undertakings are capable of storing a vast quantity of personal data. In this respect, the concept of privacy protection introduces certain industrial elements which are necessary for the competition law assessment, and, in this respect, the definition of privacy acts as a broader prerequisite. The variety of goals pursued by EU competition law is growing broader with the case law evolution. Notwithstanding, the EU competition law regime demonstrates a pragmatic interpretation of competition law and adheres to a classical provision: deontology and efficiency. Advocate General Kokott, in the British Airways case, expressed that one of the competition law goals exhibits the objective of protecting the competition as an institution since competition law is interlinked with the protection of the internal market.[34] Furthermore, in the same case, the Court, relying on the Continental Can judgement,[35] indicated that Article 102 TFEU aims both at the protection of consumers and competition, from any practices prejudicing their welfare and having detrimental effects on the competition structures.[36] In that sense, competition could be protected where the number of competitors is reduced, assuming that competitors are not stopped from competing on merits.[37] However, the aspect of effective competition protection does not refer to a competitors’ number but aims at ensuring the competitiveness of the market, which produce benefits for consumers. The evidence that protection of competition is the most important objective of competition law could originate from several sources, including academic literature but also the ideological organs of the law itself. Beginning from the economic ideology of Ordoliberalism, which influenced the regime of EU competition law.[38] The EU competition law proclaims a special responsibly of dominant undertakings, obliging them to function in a way that does not harm the competition processes.[39] Hence, the protection of competition is a very important objective of competition law: competition policy is one of the several key policies that serve in the advancement of the EU goals, which ensures a healthy functioning of the internal market, as per Article 3 TEU.[40] The concept of the internal market requires elaboration within the remits of competition law.[41] Establishment of the internal market allowed for the creation of further economic benefits, which promotes efficient allocation of resources throughout the EU with the aim of consumers’ benefit.[42] Some of the cases that impact the market integration issues within the digital economy include: contractual restriction used to restrict from selling/buying goods online,[43] or technological specification used for geo-blocking,[44] warranty restrictions,[45] or limitation on broadcasting.[46] Yet, the concept of market integration is a neutral term, attached to the subject-matter analysis of competition law rather than a self-standing objective of competition law.[47] During the analysis of the potential market structure, a further argument might stipulate that observation of the market remains an important prerequisite in the assessment of behaviour on a particular market over a certain period.[48] In the situations where the outcome of the market is required, the subject-matter of the analysis is the outcome of the market behaviour conduct;[49] competition law tends to look backwards, and observing market outcomes, which allows to perceive if a particular conduct was harmful to consumers as well as internal market. For instance, with a lack of competition in the digital economy market, any dominant platforms might increase demand for data in order to sell more advertisement. However, any enforcement is only precipitated when abuse can be demonstrated. The market structure effect would be required to assess the outcome of the subject-matter analysis on the behaviour of the market and not the consideration of the market structure. Importantly, the debate on privacy concerns and competition law appears to be myopically, as focuses solely on consumer welfare without considering a wider objective of protection of competition structure. Considering the role of data in the creation of a platform value, it can be deduced that the digital platforms rely on technology to aggregate services and content which allows to connect users for the different purposes of sharing, transactions or communicating. Hence, the potential privacy violation arising from an aggressive data acquisition is that Big Data connotes the concept of Big Analysis, which is a competitive danger. From the digital economy prism, the protection of economist stricture offers an independent mandate for intervention, detached from a direct effect on consumers. Yet, it does not necessarily have to result in more aggressive enforcement, but arguably more effective approach in the digital economy scope. Also, a focus on competition processes demonstrates the scope for a potential negative impact by the use of networks, data pool as a potential expansion to raise rival’s costs or introduce barriers to entry. Hence, there is an increased significance of data in markets recognised due to its influence on competition distortion. Hence, the question as to whether the potential privacy breaches might influence the competition law structure could be answered by Ezrachi’s analogy, which pictures the relationship between competition policy and wider societal deliberations with a sponge and membrane analogy.[50] In his research, he recognises competition law as a sponge with a political core, and economics as a membrane which allows certain external by-passes into its realms.[51] Consequently, both general values on the maximisation of consumer welfare and social and political priorities, that shape local enforcement, could be part of the competition law objectives. Competition policy objectives need to be carefully defined, as the incorporation of a multitude of different local political principles might lead to the unpredictability of the competition law enforcement.[52] Furthermore, the element of ‘effective competition structure’ might be linked to the consideration of choice in the digital economy sphere, introducing important benchmarks for the assessments of limits imposed via tying practices,[53] or reduced interoperability. Ezrachi noted a potential angle of introducing an upstream effect on how bottleneck digital players, impacting on input providers’ viability through practices, negatively affecting upstream, downstream markets and end-users.[54] Economic freedom indicates that healthy competition structures offer an unfettered exercise of choice. In this respect, Rubinstein noted that data mining destroyed informed choice due to lack of users’ knowledge and notice how the Big Data is used/processed/acquired/stored, as well as it remains unclear whether the right to be forgotten and data portability, the key features of the GDPR regime, are capable to be applied to novel knowledge acquired from personal data that has been anonymised or generalised by being put into group profiles.[55] Hence, freedom of choice and competitive marketplace are key elements in the realisation of the democracy and other freedoms pursued by the EU, with the economic plurality acting as an example of protecting wider policy examples. Therefore, the preservation of economic freedom could be a precondition for democracy, and as a result, safeguarding against regulatory or political capture.[56] In a healthy functioning competitive markets, products are offered at lower prices, and better quality of product/services is likely to attract consumers, guided by informed choices. Such a process is further subordinated by better competition and innovation in a ‘virtuous circle’.[57] Unquestionably, digital platforms, due to the proliferation of data-fuelled platforms and services, are becoming monopolies. Yet, a demonstration that all digital platforms demonstrate anticompetitive features could be preliminary wrongful. Therefore, regulators might be required to go beyond the scope of the existing competition law rules and consider a bigger picture. The digital markets are more dynamic than static and require careful considerations, due to the abstract nature of the data-fuelled markets. Yet, there could be potential problems identifiable in elevating of the protection of market structure to the ultimate objective of competition law regime. One of the potential problems lays in defining the competitive process.[58] Even if the definition of competitive processes encompasses the rivalry amongst firms on a particular market, the standards cannot distinguish between any further anticompetitive misconduct from functioning market equilibrium.[59] By solely focusing on the matters of competitive processes, it is impossible to reach a consensus whether it would be necessary to add a further objective of protecting competitive process, introducing a further normative standard to establish undertaking’s conduct as violating the competition law regime. In this respect, any normative standard should not be the competitive process in itself, because it would not have allowed for further analysis of the market equilibrium. In the EU, the decisions which articulated privacy as non-price competition factor are Facebook/WhatsApp and Microsoft/LinkedIn mergers. In the Facebook/WhatsApp merger, the Commission held that in the consumer communications markets, privacy is the key element of competition.[60] In this case, the Commission realised the need to recognise the data privacy as introducing competitive edges: privacy is valued by consumers. In Microsoft/LinkedIn, the Commission further supported such a statement, stating that privacy concerns can be considered during the competition assessment to the extent that consumers see it as ‘a significant factor of quality’,[61] indicating that ‘data privacy was an important parameter of competition between professional social networks on the market, which could have been negatively affected by the transaction’.[62] Returning to the concept of preservation of the market structure, which safeguards competition processes, Acquisti inquired whether market forces are capable to maintain a balance between privacy and disclosure in the environment where personal data unfold electronic data trains and where the information available is more respected over the informational protection in the instances of economic interests.[63] In both unilateral conducts assessments and merger reviews, structural remedies are preferred,[64] diverse to shrink the assets and markets, rather than provide with remedies which would require firms to regulate their conduct. In this respect, the aspects of market condition receive less attention. Competition law enforcers would not generally consider the basic market conditions, as it is beyond their legislative power. Yet, in the privacy protection cases, competition authorities might be unable of creating and enforcing any behavioural requirements acting as a means to protect consumers’ privacy. Some features of the data-fuelled industry make it unlikely that any market forces or private investments could result in socially optimal outcomes. Potentially, investors could not be able to capture the benefits of production of the common good, such as cybersecurity. Yet, in other cases, due to network effects, consumers cannot perceive the benefits of increased output.[65] Furthermore, the EU Commission discussed the calculation of the market share,[66] which is unquestionably an example of the instrumental approach to the assessment of the market.[67] Yet, such an approach demonstrates perils. The defined tests such as SSNIP-test might not explicitly work in the digital economy, especially in the cases regarding privacy protection, as their rationale is based on price deliberations.[68] The SSNIP test might bear a problem of the ‘cellophane fallacy.’[69] Markets, with little or no competition, might distort the protection of privacy, due to anticompetitive donuts of undertaking, which enjoys a strong market position. Yet, the non-price market's elements acts as stripping off consumer rationalities, which do not provide an explanation of market’s functions. This corresponds to the prime problem, namely: how do the digital undertakings process the users’ data? Hence, the question remains whether the privacy could be collected with income, or whether privacy could influence competition law. Potentially, this discussion could be reverted to the sphere of Big Data and Big Analysis concept which was briefly discussed above. Big Data is currently seen as the new oil,[70] and some data acquisition could result in the data protection law breach. Nevertheless, the sole discussion, in this respect, should be devoted to the concept of Big Analysis, based on personal data acquired allowing digital undertakings to establish the knowledge which could introduce anticompetitive conducts. For example, in Google Shopping, the conduct of Google artificially diverted the traffic from rival shopping comparison services, and hence, hindered the ability to compete.[71] Clearly, such conduct bore a negative impact on innovation and consumers. The Commission argued that users did not necessarily see the most relevant result when comparing their shopping results. In turn, this lowers the incentives to innovate — the rivals’ products would not benefit from the same prominence as Google’s products.[72] In other words, the price of privacy is difficult to be ascertained. The Internet’s cornerstone is personal data, which is a necessary component of digital platforms’ business model, such as Facebook and Google. The digital platforms acquire and treat data, as a necessary component to improve the quality of their services, aiming at enhancing their attractiveness to the existing and any potential customers. Consequently, digital platforms can monetise their services and products through often targeted/behavioural advertising. In this respect, the volume and quality of the possessed personal data is a key competitive element. Without any doubt, online users benefit from the digital service providers’ ability to process their personal data, acquired through the agreement between a user and a service/product provider, in the terms of a better content or more targeted advertisement. Unquestionably, the acquisition of the large quantity of data might introduce competitive restraints in the form of high barriers to entry which in hand introduces a poor competition in the digital market. With a proliferation of new digital business models, an increased number of digital companies possess a large quality of personal data.[73] In this respect, there has been a potential debate in the establishment of a test allowing to define the market for free products — small but significant non-transitory decrease in the quality, based on the SSNIP, with differentiation to consider the products’ quality to the price consideration.[74] Although the digital platforms can improve their services, based on the personal data acquisition,[75] the sole consideration of quality might not be a decisive parameter to decide the anticompetitive conduct, influencing the market structure, since it has been widely accepted that economic consideration is of utmost importance in determining both the anticompetitive types of merger/unilateral agreements but also the types of any justifications that might be used to justify any mergers/unilateral agreements. In this respect, competition law issues might arise in several different contexts, for example, online services might try to acquire the data through anticompetitive means or seek to prevent other competitors from acquiring data. There are unquestionable positive effects of the personal data acquisition by online service providers, due to its high impact on performance, including high-quality, zero-priced services. Diversely, personal data plays also a vital role for the paying side of the market. The online advertising value aims at targeting specific needs and preferences of particular users, which is different compared to other media like radio, television, or billboards. Therefore, two elements are necessary for the success: high quality of free services and generation of revenues through advertising. The data protection concerns analysis also brings a debate on its intersection of competition law, considering the limits to the accumulation and processing of personal data. There could be several reasons for competition law’s involvement within the data-fuelled economy. Firstly, there is a significant investment of political energy and time required to enable antitrust actions to advocate privacy protection. Secondly, antitrust actions could introduce unintended consequences in the absence of any comprehensive privacy protection undermining. Thirdly, antitrust will not be able to remedy most of the harm caused by non-dominant player in a particular market. Therefore, based on the assessment, only conduct with a detrimental effect on competition would be investigated, whereas conducts without interfering with competition process are irrelevant: such as gender discrimination would not be considered by the competition law enforcement.[76] Equally, the sole privacy breaches should not be seen as a parameter for protection competition structures. Hence, a debate is to ensure more pragmatism and less utilitarianism. Based on different case law, it is possible to ascertain that the shift will be possible on a case-by-case basis.[77] Once the conduct has been identified, the debate should focus on which conduct should be of importance to competition law regime, i.e. whether conduct should be seen as abusive, or not. Then, the assessment of competition processes should be conducted within these objectives. Therefore, it is capable to conclude that the objectives of protection of competition structures applied on normative value, which derives from the particular in question objective, makes the protection of competition law worthy.[78] A brief discussion on fairness and a concerns Although the article focuses only on the three key goals of competition law, the concept of fairness is necessary to enrich the above discussion on the protection of competition. The EU antitrust policy in many respect reflects on the Ordoliberal thinking, which perceives competition as demonstrating both economic and political powers,[79] affirming a role of States in keeping market open to competition, protecting a status quo of market equilibrium.[80] The political precondition, then, ensures that regulators take measurements to confirm a fair and democratic society. Yet, defining fairness is a laborious task, with a different concept of fairness recognisable in the context of different areas of law.[81] Within the meaning of competition law, fairness is ascertained into two subcategories: formal and substantial fairness,[82] with the former relating to the processes where the bias or discrimination is absent in resources’ allocation, considering the process of equal opportunities,[83] whereas the latter refers to the resources allocation outcomes, focusing on a fair allocation of the total surplus between consumers and producer.[84] If the competition law regime focused solely on fairness as competition law objective, its rules would prohibit undesirable social application of resources.[85] Consequently, competition law would become a mechanism to ensure the correct market outcomes. Yet, as Nazinni added, this ex-post function is foreign for competition law,[86] since the process of competition law protects the market structures from any competition constraint, ensuring that the resources' allocations remain fair. However, in the circumstances where it is no longer fair, the different social policies should become a means to address any distributional problems. Due to the abstract nature of fairness, the objective should serve as a guide, and not an enforcement benchmark.[87] Verstager noted that competition policy aimed at shaping a fair society, allowing a fair chance distributed to small business and individuals.[88] In this respect, it is likely that fairness, as an abstract phenomenon, would have not stood on its own, but acts as an important prerequisite in supporting against the monopolisation of large economic players. Fairness might, therefore, be entwined in the competitive process, and somehow guide the enforcement, reflecting on the consumer welfare and efficiency interpretation.[89] Economic reasoning might arguably be fused into the concept of fairness, as fairness based on ensuring legitimacy. Fairness might be seen as being a multidimensional aspect in competition law, as for example in the analysis of margin squeeze, it might acts as providing equal opportunities between competitors, as well as protecting consumers. Yet, fairness and protection of competition should not be confused: the fairness would not be used to challenge competition processes.[90] In the assessment of the privacy and fairness, there are varying perspectives of privacy recognised globally as to the level of data protection and the role of competition law in this context. Different conceptions of privacy might be recognised in various cultures and social systems or the consumers’ heterogeneity: some might value privacy less, whereas others much more.[91] Privacy protection has been debated as falling outside the scope of competition law enforcement. Yet, the proliferation of the data acquisition in the digital economy indicated that privacy and fairness and competition law might be potentially interconnected, especially when exploitative and exclusionary effects come into discussion, as per BKA’s Facebook case.[92] Although the concept of fairness acts as an abstract phenomenon to the normative value of the competition process[93] and protection of fair market outcomes, it crystallises the legitimate expectation of market participants. In this respect, the notion of fairness influences the structure of competition law, recognising that an economic agent cannot be prejudiced within the scope of competition law, from the disadvantaging objectives of the market. Hence, fairness might be decisive in the digital economy sphere, as its abstract norm guides the relationship between online platforms, consumers, and service providers. Fairness, yet, appears to demonstrate a multisided nature as supporting interventions of unfair market practices, discriminatory practices, as well as allows to justify intervention when misleading information might lead or facilitate distortion of competition. Arguably, this broad scope of fairness could also encompass data handling or privacy violation which could harm competition, as well as could play an important role when asymmetric information could distort competition. Fairness, however, convincingly shows that a large data acquisition could threaten fundamental civil rights and impact on the ability to participate in political life, leading to discrimination.[94] As discussed above, the proliferation of the data-oriented business models demonstrate a risk of different cyber incidents, including data breaches.[95] It might be tempting and interesting to consider these issues in the wider competition law spectrum. However, the protection of fundamental rights has been considered to be beyond the scope and application of competition law.[96] To demonstrate this efficiently, one might consider the example of the media plurality, which is seen as an important democracy outset.[97] On this assessment, one can consider the UK Competition and Markets Authority’s (CMA) investigation of the merger of Sky plc and 21st Century Fox.[98] Although the merger was cleared at the European level, the CMA assessed the context of public interests, including the broadcasting standards and media plurality objectives, arising from the merger.[99] The scope of the investigation demonstrated that there are a number of inferences from the scope of competition law. Primarily, the consideration was placed on the notion of media plurality as falling outside the scope of competition law, as otherwise the EU Commission would consider this notion in their investigation. Therefore, referring it back to the discussion on competition law, fairness and privacy concerns, the example of media plurality might act as closer to the enforcement of competition law, since any competition reduction might result in a reduction of media plurally, which technically creased imposition of unfairness, influencing negatively consumer welfare. The discussion about privacy concerns adds a further element. The analysis of the media plurality demonstrated that it is not a concern for competition law, but there is a potential indication of its connection with a number of competitors on the market, and impact on the consumer welfare. Applying this rationale to privacy protection, the considerations demonstrate that privacy protection relates to big data and big analysis. Therefore, the assessment is likely to consider different elements and how they might adversity affect consumers in making a reasonable choice. It is nevertheless apparent that privacy concerns might be way behind the remits of the conventional competition law assessment as focusing on quality and innovation. For example, in Facebook/WhatsApp,[100] the EU Commission claimed that privacy polities establish a non-price parameter of competition: a degradation of private policies affect aspects of product quality, or even amount to the product price increase.[101] Hence, it might be an indication that potentially privacy concerns might be seen as indirectly influencing competition law assessment. Additionally, the concept of fairness is linked to innovation, as fair competition ensures a better quality of technological services and products while aiming at the cost reduction, which then benefits consumers since they can benefit from a low cost and a high product’s quality.[102] Yet, the fusion of efficiency and fairness requires a certain act of value balancing. Specifically, the undertakings should not be seen as limited to the adoption of a norm-neutral economic approach, as bearing a risk of dissolution of EU competition law from its roots and norms, which include fairness.[103] Hence, the economic theory might act as a normative theory resolving any normative concerns, with non-efficiency objectives being expunged.[104] Such an approach could substitute democratic control with technocratic control.[105] The above considerations suggest that, although the content of fairness is included in the competition law enforcement and is potentially relevant in the privacy breach assessment by focusing on achieving a desirable outcome in the protection of competition structure, fairness is a competition law’s procedural matter and should not be focused extensively in the analysis of the competition law enforcement. The proof for this proposition is that competition law could become superfluous if focused on the surplus' allocation rather than focusing on the process of allocation of resources.[106] Additionally, even if competition law aims at the fair allocation of resources, it does not mean that all economic actors should be placed in the same position in particular transactions, but the fairness of equal opportunities to participate in the market should be offered. Yet, the fairness might not be a decisive normative standard of competition law, and its idea could only focus on fair wealth distribution. However, such a notion might be seen as being beyond the scope of competition law enforcement and different policies might be more suitable to achieve fairness. Hence, fairness should not be seen as a weapon to ensure that consumers are protected against a violent undertaking, the protection of the individuals’ rights as consumers and market participants is already protected by the data protection and consumer protection authorities. Lastly, fairness and equality of opportunities emphasise that dominant undertakings are not exploiting their superior efficiency, which could influence an unfair market entry. For instance, the acquisition of the large quantity of data might introduce competitive restraints in the form of high barriers to entry, which in hand introduce a poor competition in the digital market. Google/DoubleClick introduced several potential data-related competition restraints.[107] Firstly, online services might engage in anticompetitive data acquisition, taking a form of exclusionary agreements or prevention of data portability. Considering the exclusionary agreements, Google was alleged of intermediation agreements, which made Google become the exclusive search provider. Also, Google was alleged of entering into distribution agreements with software vendors, which exclusively use Google as their toolbars and web browsers. The anticompetitive spectrum on the Google issues demonstrates that exclusive agreements could exclude rivals, especially made by dominant firms. Furthermore, there is a potential element of vertical ‘single branding’ agreement establishment, which might result in anti-competitive foreclosure. In this respect, the action might prevent on the concept of freedom of choice as well as a competitive marketplace, which are key elements in the realisation of the democratic freedoms and other freedoms pursued by the EU, and the economic plurality might be hence an example of protecting wider policies, such as healthy policies. Therefore, the preservation of economic freedom could be a precondition for democracy, and as a result, safeguarding against regulatory or political capture.[108] In summary, the fairness of competition and market might influence the fairness of economic agents, devoting both consumers and sellers. Firstly, considering the limits of antitrust, it has been already widely noted that the privacy invasions and data breaches are increasingly presenting a danger to society. In theory, some of the competition enforcement might be capable of considering the increased consequences of commercial processing/collection of personal data. Yet, neither competition law nor economic analysis supports such an argument.[109] The concept of fairness cannot be ultimately an objective of competition law, as it is methodologically impossible to accurately define and apply the concept in practice. Yet, within competition law, as well as the digital economy (based on potential privacy breaches) might influence findings of anticompetitive behaviour. Yet, a competition law breach cannot be found merely in the lights of the free-standing concept of fairness. Social welfare objectives in the assessment of privacy concerns The aforementioned discussion on the protection of competition law structure could be further emphasised by the referenced to the scope of welfare objectives, with consumer welfare being the more recognisable one. As explained above, an effective competition process, which ensures economic freedom and market integration. These objectives would also be vital in the protection of competition equilibrium within the digital economy investigations. However, their scope and application might be limited due to ambiguity. Additionally, any personal protection breaches accumulated from the Big Analysis might demonstrate that protection of competition structure might lack a methodological ability to analyse the outcome of any Big Data/Big Analysis anticompetitive conducts. For example, the EU Commission in the merger case of Microsoft and Skype indicated that the fast-growing digital sector, which is often characterised by short innovation cycles, which might indicate that the large market shares could turn out to be ephemeral.[110] Hence, in this dynamic context, it was argued that the market share in itself might not be decisive in indicating the market power in itself and therefore might not be of lasting damage to competition law.[111] Hence, the problem is still real. The myopic nature of the GDPR indicates that the problem is not simply within the remits of consumer protection, but the level of possibility of competition law to intervene in the potential privacy breaches within the cases of an appearance of competition abuse. However, the problem should not be based on the further explanation of the value of competition law in the assessment of potential extension to privacy concerns, but it might indicate that the problem is structural, and the mere assessment of the protection of competition processes might not be omniscience. In this respect, it is logical to assume that protection of competition law structures might require a further goal. Hence, to answer this question it is logical to trade into consideration other economic arrangements that with competition might arrive with arrangements bringing societal benefits and are protected because of the increase not of welfare in the society. Since the competition regime is concerned with economic processes in society, it is necessary to also consider the aspect of competition as benefiting society.[112] However, it is necessary to add that the concepts of fairness or freedom are less not less important for competition law. However, its role often is minimal and they are only necessary for a wider picture of competition law goals, and on their own, they are not sufficient for the anticompetitive assessment, to mark which behaviour should be allowed or not under the competition law regime. In the attempt to move from the abstract form of protection of competition structures, by considering the sole aspects of freedom and fairness, the competition law assessment needs to consider more workable preservations. Equally, the concept of privacy is abstract, and its sole assessment might be outside the scope of any competition law assessments since its nature is mostly to connote a right devoted to individuals. In fact, the GDPR, which aims at protecting personal data of private end-users, lacks a proper definition of the theory of harm. In addition, the right devoted to data controller further emphasised a potentiality to strengthen their power as private gatekeepers. In this section, an emphasis placed on the concept of consumer welfare and its value in the privacy assessment concerns. Advocate General Kokott emphasised that protection of the market structures also indirectly protects consumers as any damage to the competition flow also impacts on consumers,[113] with the EU courts establishing that competition law aims at practises both damaging consumers and the structures of effective competition.[114] In the case of T-Mobile competition law was noted to be concerned with practice, regarded as having an anticompetitive object even if a direct connection between the practice and consumer prices is absent.[115] Furthermore, the case of TeliaSonera recognised a significance of preserving competition from possible distortion with a negative effect on public interests, individual undertakings and consumer, thereby, ensuring the EU wellbeing.[116] In this respect, in the case of Intel v Commission, the above reasoning was reiterated, indicating that, the Commission was not required to prove a causal link between data to consumers and practice in question since Article 102 TFEU aimed at remediating practices detrimental to consumer welfare and competition structure.[117] Yet, Daskalova pointed out that an exact meaning of a consumer has been still not sufficiently discussed in the competition law sphere, acknowledging that the exact welfare measurement has also been missed from the general discussion. In her discussion, unanswered competition law aspects were identified, namely: who are consumers? are they final or intermediate consumers? Could price be seen as the only measure in the competition law? And, what about the choice or equates domestic preferences of considerations?[118] Linking privacy protectionism to consumer welfare within the antitrust regime could be difficult. Primarily, privacy protection is a public right which falls within scope of specific regulation which does not necessarily result in consumer welfare analysis. Primarily, regulators would be forced to predict how to access the means in which new data or data sets would be used by undertakings, and how privacy, as a quality parameter, be affected. Furthermore, regulators would be required to determine any impact, or director of that impact on consumer welfare. Hence, potential changes to ‘privacy parameter’ could be approximated by any chances in amount of data acquired, or changed its use, or both. Yet, Privacy could introduce novel challenges to the consumer welfare’s sphere, with the debate fared up after BKA’s Facebook proceeding. Consequently, the changing economic landscape brings uncertainty to the nature of the competition pressures, with an emphasis being given on the normative scope of competition enforcement — mainly as to whether the EU competition law could be viewed as a societal norm also advancing the wealth. As noted above, the objective of Article 102 TFEU are necessary to ensure a healthy functioning of an internal market and, thereby, consumer welfare.[119] In this respect, the goals could reaffirm the equality of opportunity.[120] Hence, the use of asymmetric information might give rise to abuses which adversely impact consumers wellbeing and, hence, may require intervention. Furthermore, the notion of consumer welfare could provide a workable benchmark for intervention in digital markets, allowing to address any exploitative and/or exclusionary practices with the objective to restrict competition. Within the digital economy, the concept of consumer welfare might be used to tackle the effect of welfare on numerous groups of consumers. It can be effective in addressing multi-sided markets, which undoubtedly characterise digital markets. The Commission acknowledged that the notion of ‘consumers’ covered all direct and indirect, covered by an agreement, product users, incorporating producers, retailers, wholesalers and final consumers. Despite the deontological approach attracting in this context, the EU competition enforcement should be oriented on contributing to a fairer society,[121] as the objective of the market integration,[122] which is a key element of the EU foundation, accounts the consumer welfare too. Vestager referred to the importance of the fair market, claiming that competition enforcement pursued the objectives of fairness, for which the public authorities also to defend the interests of the consumers.[123] The competition amongst the undertakings relates to the price, wider choice of product, or better quality. As noted by a vertical merger of TeleAtlas/TomTom, which concerned about the market of digital database maps indicated that potentially the merger could improve the welfare of the consumers as the TomTom’s large consumer base would have improved the maps provided by TeleAtlas.[124] The application of consumer welfare is heterogeneous, as comprising all members of the society. In the digital market, the behavioural element would support an increase consumption of the users; consumers are likely to stay in the platform used by their family and friends, often unaware of maintaining competitive pricing because of their increased consumption.[125] Furthermore, considering a price-centric method to consumer welfare, a distorted picture might be provided. Clearly, the digital market usually provides ostensibly free for consumer services, and in this respect, quality forms an important parameter of competition. Bringing an example of the Facebook case, the distortion of privacy was seen as harming consumer welfare, despite the lack of price effects. Hence, the privacy might enforce a range of, not easily quantifiable, variables impacting on consumer welfare. Therefore, it is deducible that privacy concerns might not revolute the competition law itself, as the established competition law is adaptable to provide adequate remedies to bring a competitive equilibrium on a relevant market. However, it is important to note that competition is normative. What often one might witness is the refection on competition as a part of legal incentives and constraints and social, ethical, and moral norms. The assessment of any promising legislative approach to offer individuals’ greater control over their personal data might enhance the accountability of their power in negotiation. However, this approach not always offer a great response to any protection. The potential alternatives are as follow: (1) behavioural discrimination, witnessed by information which digital users witness while relying on digital services and products, to which they immediately select ‘accept all’,[126] or (2) the default privacy notices, which as per the case of Microsoft,[127] offer an omnibus privacy support. Hence, any potential incentives to create privacy by design might sound promising. However, users would always opt out for even a minimum of our data to be disclosed, as often the privacy notices on the sides would be disturbing to the equivalent of the advertisement. Generally, the protection of personal data at the EU level is offered by the GDPR, which aims at encouraging innovation and create opportunities at the European Digital Single Market.[128] Yet, the private regulators would have their power strengthened by the GDPR, as its features, including the right to data probability, offering a wider control over the data, might, in fact, provide only a short-term approach. The data has already been used to the processes of analysing it and the knowledge has been already applied for a greater grow of a particular digital platform. Equally, each element of data bears no value of the end-users who relies on the right to data portability. Hence, practically to engage in the sphere of informational asymmetry, an under-active consumer should have their enhanced discourse protected, as its negative dimension might impose negative externalities, wearing competition.[129] Nevertheless, the individuals’ welfare is an overarching objective of consumer law, data protection and competition law.[130] In terms of competition law, its cornerstone is to ensure undistorted competition within the internal market.[131] The application of EU competition law demonstrates a horizontal scope that is — competition law applies both to public entities which operate in the market and private, state-owned undertakings.[132] On the contrary, the data protection aims at safeguarding users’ fundamental rights and freedoms, without restricting the free movement of personal data.[133] Data protection and competition law are within the primary law of the EU legal regime; and similarly, to competition law, the data protection law regime is decentralised, i.e.. national supervisory bodies are the main enforcers (small point to note here: unlike competition law EU wide authority, there are not any equivalent for an EU-wide data protection authority. The consumer welfare might be noted by considering the concept of notice-and-consent scenario. According to Pasquale, the problematic relationship between privacy and competition law could amount to the ‘structural production if ignorance’, which characterise the ‘opt-in/opt-out’ scenarios, experienced by consumers as monopolistic.[134] On the contrary, other commentators aim to develop a connection between competition law and privacy, and have the case for a more holistic approach between these fields. With many differentiating visions of privacy and competition law, it is important to make the case for a more comprehensive vision. Once ascertained, the State and competition law authorities could development novel and nuanced orientations towards problems sources from the intersection between data and competition law, to deter and punish any unfair and harmful behaviour and improve market processes. It is admitted that the majority of consumers do not read privacy policies, since they are long, full of legal jargon and often unclear for users. As a result, consumers with an impaired understanding of the T&Cs, create digital self of their behaviours. Yet, their impaired understanding of the T&Cs result in the users having little confidence that they could detect any unfair or discriminatory conduct. In the age, when the users are expected to guard their data, consumers are lacking an understanding of the practices in which the platforms are using their data. Yet, many argue that there are normative rationalities for giving the users a chance to control over data, with privacy advocates attempting to solve any possible conflict.[135] Often, such advocates adopt a neoliberal model, recommending notice-and-consent policies.[136] Yet, there might be little of empirical evidence to support the current notice-and-consent framework as the favourable model for privacy protection. Correspondingly, the concept of privacy paradox apprehends the market failures in the digital economy.[137] The concept of privacy paradox refers to a phenomenon where users respect their privacy and demonstrate a broad need for broad data protection, whereas in practice they have no preferences.[138] Yet, two caveats of the notion are recognisable, which could result in markets failures. Primarily, users, wanting to protect their data, fail to act to take measures to protect their data; they often are too lazy to read the T&Cs, or they do not read carefully the privacy protections. Furthermore, users fail to understand what happens to their data, due to the lack of transparency and intelligibility. Interestingly, the issue in this argument lies with a lack of ability. Nevertheless, a debate as to whether the reform is needed is still present. For instance, the libertarian privacy establishment declaring that consumers’ preferences reveal for the privacy-invasive services.[139] Yet, analysing further this proposition, there is a likelihood of presenting an illogical rationale, since a simple statement that consumers are surging companies, including Facebook, out of conscious preference on privacy policies is difficult to be ascertained. Instead, users decide to use such platforms due to their personalisation of searches and social network services, which advantages from the acquired data to achieve near- or monopoly status. Given the complexity of their operation, consumers might never know the real value of privacy to their business models. Therefore, by essence, competition law relies on the economic parameters which allow to picture the consumer harm, such as by monitoring prices or possible reduction in input, quality and/or innovation.[140] Privacy considerations are left outside the competition assessment at the moment, due to the potential ambiguity in ascertaining its anticompetitive harm.[141] There are a number of different responses why data privacy should become a part of competition assessment. The following two approaches are widely discussed. Firstly, there is an overarching consensus that privacy is a fundamental right. Hence, competition law should be able to extend to a certain conducts, which might negatively impacted on this right.[142] Esayas claimed that this approach indicated that any mergers should be blocked by competition authority if they endanger individuals’ rights, unless the merging undertakings would implement any safeguarding privacy policies in place.[143] Furthermore, the following approach, according to Esayas, will not be based on purely competition concerns (including: price increase, output or quality).[144] Therefore, in longer terms, any mergers would be required to defeat unconquerable challenges. Secondly, any reduction in privacy protection affects the form of quality, consumer choice or diminishes innovation. This approach is both shared by the EU Commission and the US Federal Trade Commission.[145] Furthermore, this approach acknowledged competition law as being limited to competitive issues but postulates that privacy protection could form a competition dimension.[146] The requirement to consider privacy as a competition dimension is important in consideration of services offered at zero-price in exchange for personal data. However, this approach could have been further argued to show methodological concerns, since a circle of data procession by an undertaking would indicate that privacy breach is a mere by-product of Big Data’s Big Analysis. In this respect, it is likely to conclude that the long-term social welfare might be preferred to act as a guarantee of free competition, the efficient working of common markers, freedom of consumers and competitors as the main objectives of the competition law. Hence, long-term welfare might be theoretically superior to any other objective. The rich an extensive consumer view on the sphere of digital economy established a clear intensive to impose an instrumentalisation of competition law, with an effect of digital gatekeepers, which takes into consideration the simple aim of “protect[ion] [of] competition in the market as a means of enhancing consumer welfare and ensuring an efficient allocation of resources.”[147] Efficiencies and privacy concerns Efficiencies are another, frequently mentioned, goal of EU competition law.[148] The EU competition regime promotes economic efficiency, which is an ethos of neoclassical and neoliberal economics.[149] To this effect, efficiency considerations are entwined with consumer welfare promotion.[150] It is important to discuss the efficiency argument as a prerequisite in assessment of competition law from the perspective of privacy concerns in the antitrust cases.[151] This section aims at a brief assessment of efficiencies, to further emphasised the preferred long-term social welfare objective of the competition law, which could be a preferred objective of competition law in the privacy concerning dispute In this respect, any conduct that reduces market rivalry or hams the long-term social welfare should be deemed as unlawful. The discussion on efficiencies is thoughtfully enriching the above findings and are necessary for any further considerations of the social welfare long-term benefits. As a starting point, a brief discussion about the three components of economic efficiency is necessary. Firstly, a concept of allocative efficiency corresponds with situations where goods and service are allocated according to the price consumers are willing to pay, with the price never exceeding the productional marginal cost. Such efficiency is achieved under the phenomenon of perfect competition, as the market price cannot be affected by a producer reducing its output.[152] Allocative efficiency might be contradicted with allocative inefficiency, occurring when firms (with sufficient market power) influence prices by output reduction, resulting with marginal costs exceeding; any unilateral agreements or mergers with an incentive to increase the market power would contribute to allocative inefficiency. Furthermore, productive efficiency aims at the production of goods and services at the lowest possible cost. Any output is maximised by the most efficient inputs’ combination, which, in turns, means that in the production of the goods/services requires a minimum of society’s wealth.[153] Lastly, dynamic efficiency focuses on producers and requires their constant innovation and development of new products. This might be illustrated as a battle to gain market shares, by attracting new consumers. Competition legal regimes aim to promote innovation and economic efficiency by increasing productive and allocative efficiency. There is a broad consensus that the digital economy is a key driver to the future prosperity, which, unquestionably has revolutionised business models, services/products, and social interactions. Furthermore, it is also undisputed that the digital economy has introduced a new constraint in delivering innovation, efficiencies, and consumer welfare, as well as stimulated a dynamic on markets. The efficiencies of the business model of Facebook is based on a personalised advertising model, and according to the BKA, it does not outweigh the users’ interests during the processing of their personal data from outside Facebook sources.[154] The social network function would depend on the valorisation of data and its high degree of processing. In this respect, the T&Cs, with data acquisition in their cornerstone, demonstrates a considerable impact on social network functioning, as well as the welfare of consumers of the Internet. Yet, this argument could further impose an important point: is there a fine line between competition law and data protection law infringement? The EU Commission has rarely considered the efficiencies in itself. In the case of Microsoft/Yahoo!,[155] the Commission appeared to hint some efficiency arguments, arguing that to effectively compete against Google, the dominant search engine, the parties needed a larger scale. Nevertheless, there was not any direct mention of the efficiency by the EU Commission. However, as it will be noted, consumer welfare and efficiency might clash at the instances where the lower costs, caused by efficiency, are not directly passed on to consumers. In fact, within the digital economy, the products and services are offered to consumers for free, and consumer is not charged any positive price to use and access the digital services. Assessing the BKA’s Facebook case, the BKA provided a vague discussion on the efficiency assessment and indicated primarily that the assessment of Facebook misconduct qualifying the data protection breach was capable of being analysed through the competition law since it overemphasised the dominant position of the social network. Nevertheless, the Facebook case was decided solely on German law, and there is no equivalent on the EU legal level. Generally, competition law improves efficiencies. According to Schneider, there are two distinct debates: broad and narrow welfare standard of EU competition law.[156] The narrow welfare (or economic welfare) concentrates on productive efficiency, growth, market output and total welfare. In contrast, the broad welfare is understood to be an alternative/additional aim of competition law, which might encompass economic democracy, consumer welfare or density of the common market in a broad sense. Alternatively, there is a debate about non-efficiency and non-welfare factors. Yet, this could be potentially rejected as introducing further the debate as to why we do have competition law at all. Yet, often non-efficiency and non-welfare factors are used to further prove that competition law could be used as a political factor, which aims at, amongst others, reduction of poverty or welfare redistribution. Yet, on the other hand, non-welfare and non-efficiency factors might exclude several aspects of the competitive market. A key issue is what weight is given to particular efficiency standards: while economics consider social welfare,[157] EU competition law focuses on consumer welfare.[158] Yet, the economic efficiency is not the sole objective considered by enforcement authorities. Firstly, the EU competition law has a central objective of promoting economic integration between the different Member States.[159] The overarching goal of the EU was indeed a creation of the single market, where intra-Community trade barriers would have been abolished.[160] The case of Consten and Grundig pointed out that the integral market might have been compromised if an agreement between undertakings was designed to partition markets along national lines.[161] Yet, the analysis of Article 102 TFUE is potentially an area of competition law, where there is a least of economic theory applied. Geradin demonstrated that such an argument might be supported by the decisional practice of the Commission, which places an emphasis on application of per se prohibition to different conducts of dominant firms.[162] From a prism of the digital economy, the protection of economist structure might offer an independent mandate for intervention, detached from a direct effect on consumers. Yet, it does not necessarily have to result in more aggressive enforcement, but arguably more effective approach in the digital economy scope. In addition, there is a focus on the competitive process and its potential likelihood to be impacted by the use of networks, data pool as a potential expansion to raise rival’s costs or introduce barriers to entry. Hence, there is an increased significance of data in markets recognised due to its influence on competition distortion. The EU competition law is not limited to the above. It has been recognised that to ensure that the market functions properly, efficiency and innovation is also vital.[163] Although there has been a debate on the scope and measurement of gains of efficiency, which could take different approaches,[164] efficiency certainly plays a central role in the competitive assessments.[165] However, the question is how do role efficiencies impact privacy protection, if any? The theory of free digital services and products, which based their business model on data acquisition, efficiency could not be a focal point. The inherent efficiency nature might be somehow assessed in the case of Microsoft, concerning a tied Windows Media Player product to its operating system The line of Microsoft defence was based on an argument that trying two products resulted in a cost-saving since it was no longer required to set up a different channel for media player distribution. In this respect, customers would face a decreased price, as well as would spend less time on installing a media player channel. Yet, the EU Commission indicated that an argument on efficiency could be potentially irrelevant, as the software cost remains low and might be replicated by little effort. In this respect, the Commission focused on the different aspects, including innovation and consumer choice rather than the efficiencies. In respect, the usage of the free digital services and products might disseminate without any effort of the users. Hence, the aspects of efficiencies might be considerably playing a smaller role in cases involving privacy protection. Similarity, the BKA’s case proved that data processing is not necessary for efficiency.[166] To ensure a healthy market function, efficiency[167] and innovation are also vital.[168] The digital economy demonstrates a need for dynamic efficiencies (innovation), as allowing to stimulate dynamic markets, enhance consumer welfare while diminishing marginal returns. Innovation should not be ignored by the competition authorities, as it is unquestionably a key driver for competition and markets. Competition policy plays a vital role in fostering competition in innovation,[169] by safeguarding free market and efficiency maximisation. Then, the question on how to support innovation goes either to Arrowian or Schumpeterian assumption.[170] In simple terms, consumer welfare and efficiency might be interlinked, while considering the privacy concerns in the competition law assessment. Yet, with the EU Charter implementation, the EU Commission is bound to facilitate its provisions, including the privacy breaches.[171] However, in the form of being reluctant to intervene in the cases with direct harms to consumers in the form of excessive pricing, there are equally no reasons why the lower privacy available to end-users should be a means for the competition authorities to intervene.[172] The question should be therefore necessary indicative that the gap is not necessarily whether the competition law’s application is inadequate in assessing the privacy concerns, but the problem lies within the GDPR application as it is lacking an adequate regulation. The public policy should not be therefore based on the assessment of efficiency and competition since the competition law should not be extended beyond their natural limits. Yet, this point would be indicative that market forces, as well as competition law, are not adequate and sufficient to promote the level of privacy.[173] Conclusions The above discussion demonstrated that the debate of the relationship between privacy and competition law is more complex than the primary debate suspected. Big Data might indicate certain promises as well as risk in society. This corresponds with findings of that the literature on two-sided markets corresponds with the literature of network effects: this model appears to bring different market participants to the market, where normally they would not have interacted with each other. This debate has demonstrated that consumer welfare might be viewed as a favourable goal within the sphere of digital economy assessments. Yet, by the nature of EU competition law goals, this might not be a self-standing goal. EU Competition law goals are seen to be interlinked between each other and in their very nature aim at securing the competitive processes of the EU, and the goals of EU. The personal protection grated by the GDPR cannot be overstated, as by its key aim grants protection to consumers and digital users from any harm resulting from the unauthorised and/or excessive personal data use, protecting users from any potential negativity which could affect users’ dignity, which include different forms of discrimination (including price discrimination), identify theft, or harm to autonomy.[174] Essentially, the GDPR also ensures a balance between data controls and subjects, free flow of information and, at the same time, strengths the trust of the users that their data is handled with a reasonable expectation to ensure efficient maintenance of the market conditions, and realisation of the technological value. The problem between competition law and privacy might be amounting to the structural production of ignorance, which is only focused on the notice-and-consent privacy models, based on the opt-in/opt-out scenarios, which are used for a coercive monopolistic scenarios. The myopic focus on privacy as an efficiency gain might be just seen as a temporary, and for the long-term pathologies of corporate concentration, there are no sufficient means to protect the process of competition. Hence, the identified elements such as a notice-and-consent privacy regime in its first analysing might create only temporary efficiencies, which are further emphasised on the consumers' judgement to enter into a one-sided contract, over the reflections to optimise the data flow for the long terms interests of consumers. Simultaneously, the other side of the debate aims at the development of an interlinking relationship between competition law, which aims at developing holistic proximity between these fields. With several differentiating approaches to the privacy and competition law, it is important to focus on a more comprehensive vision, which develops a regulatory regime which develops a new orientation toward the process of competition law and privacy concerns and aims at detecting harmful behaviour and aims at market process improvement. Hence, it is evident that the further discussion would consider how the dominant digital undertakings, with the data orientated models, might be regulated, as the current regulatory regime is in itself limited in the digital gatekeepers. In this respect, potentially instrumentalisation of competition law might be legitimate, as witnessed by the telecoms instrumentalisation. The subsequent debate would be therefore aimed at analysing possible angles of regulatory intervention protection the processes of competition law, consumers, and the internal market in the age of digital era and include a potential scope for industrial policy measures. About the Author Arletta Gorecka is a Ph.D. in Law Candidate at the University of Strathclyde The opinions expressed in this article are those of the author. They do not purport to reflect the opinions or views of Indic Pacific Legal Research LLP or its members. References [1] Case B6-22/16 Facebook, Exploitative business terms pursuant to Section 19(1) GWB for inadequate data processing. Retrieved August 28, 2019 ; and the German Federal Court of Justice case (2020): Case KVR 69/19, Facebook v Bundeskartellamt accessed 24 June 2020; or at the EU level: Case. 38606 — AT.39740 Google Search (Shopping) [27 June 2017] [2] A Ezrachi, V Robertson, ‘Competition, Market Power and Third-Party Tracking’ [2018] World Comp: L&C Rev, 5,5. [3] EDPS, ‘On the coherent enforcement of fundamental rights in the age of big data’ EDPS, Opinion 8/2016 < accessed 22 July 2019 [4] World Economic Forum, ‘Personal Data: The Emergence of a New Asset Class’ (2011) < accessed 29 May 2020. [5] See, the argument of the European Data Protection Supervisor to include privacy and data related concerns into competition authorities’ investigations. EDPS, ‘Privacy and competitiveness in the age of big data: The interplay between data protection, competition law and consumer protection in the digital economy’ (2017) accessed 20 April 2020 [6] Carole Cadwallard, Emma Graham-Harrison, ‘Revealed: 50 million Facebook profiles harvested for Cambridge Analytica in major data breach’ (The Guardian, 17 March 2018) accessed 25 March 2020. [7] Consolidated Version of the Treaty on the Functioning of the European Union, 2008 OJ C 115/47, article 16. [8] Charter of Fundamental Rights of the European Union 2010 OJ C 83/02, article 8. [9] Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation). [10] GDPR (n 10), article 4(2). [11] The GDPR defines a person as either natural or legal person. Ibid, article 4(1) [12] Ibid, article 4(7) [13] Ibid, article 7, recitals 32, 33, 42, 43. [14] The data controller is obliged to inform data subject about the anticipated purpose of data processes (Recital 42) and informs about a right to with withdraw their consent at any time, as per Article 7(3) GDPR. The GDPR is based on an understanding that individuals must be comprehensively informed about the purpose of the data processing (Recital 42). Their versatile consent ought to cover all activities arising from data processing (Recital 32). In this respect, the consent has to be clear, concise and should not involve any unnecessary use of the service in question (Recital 32; similar conditions apply for the documents involving specification of data processing purposes, Article 7(2) and Recital 42). [15] Ibid, article 6(1)(a) [16] ibid, article 6(1)(b-f) [17] Facebook case (2019) (n 1) paras 778-780. [18] European Commission, ‘Guidelines on the Application of Article 81(3) of the Treaty’ [2004] OJ C101/97, para 13. See also: David J Gerber, ‘The Transformation of European Community Competition Law?’ [1994] Harvard Intl LJ 97, 102; European Community for Coal and Steel, 'Rapport Des Chefs De Delegation Aux Ministres Des Affaires Etrangeres' (Spaak Report) (1956). [19] ibid. [20] Case C-501/06 P GlaxoSmithKline Services Unlimited v Commission and Others [2009] ECR I-9291, para 63; Case C-8/08 T-Mobile Netherlands and Others [2009] ECR I-4529, paras 31, 36, 38-39; Council Regulation 1/2003 on the Implementation of the Rules on Competition Laid Down in Articles 81 and 82 of the Treaty [2003] OJ L1/1, Recital 9; European Commission, ‘Green Paper on Vertical Restraints in EC Competition Policy’ COM(96) 721, para 180. [21] Ariel Ezrachi, ‘Sponge’ [2016] J Antitrust Enforc 1, 18. [22] TFEU (n 8), article 9 refers to: ’the promotion of a high level of employment, the guarantee of adequate social protection, the fight against social exclusion, and a high level of education, training and protection of human health.’ [23] ibid, art 12; Art 38 Charter of Fundamental Rights of the European Union [2016] OJ C 202/389 (hereinafter ‘the Charter’). [24] ibid, article 168(1); the Charter (n 138) article 35. [25] ibid, article 8. [26] The transport industry was exempted from EU competition law regime application by the Treaty of Rome. For further discussion see: Lars Gorton, ‘Air Transport and EC Competition Law’ [1997] Fordham Int'l LJ 602, 608. [27] Ford/Volkswagen (Case IV/33.814) Commission Decision 93/49/EEC [1993] OJ L 20/14, para 36. [28] TFEU (n 8) article 11; Charter (n 27), article 37; see also: Julian Nowag, Environmental Integration in Competition and Free-Movement Laws (Oxford University Press 2016) [29] Mark Scott, ‘Cambridge Analytica helped ‘cheat’ Brexit vote and US election, claims whistleblower’ (Politico, 27 March 2018) accessed 25 March 2020. [30] Renato Nazzini, The Foundations of European Union Competition Law: the Objectives and Principles of Article 102 (Oxford University Press 2009) 116; Consolidated Version of the Treaty on European Union, 2010 OJ C 83/01, article 3(3) [31] The abuse of dominance needs to take place within the internal market of the EU, as well as be identified between Member States. Such requirements are said to be purely jurisdictional threshold, and support in establishment of circumstances in which an abuse of dominant position becomes relevant under the EU law. ibid, 109. [32] For example, Merger Regulations and Guidance on the Enforcement of Article 102 use the term of ‘effective competition’ as opposed to the term ‘competition’. See: Commission, ‘Communication from the EU Commission — Guidance on the EU Commission's enforcement priorities in applying Article 82 of the EC Treaty to abusive exclusionary conduct by dominant undertakings’ (2009/C 45/02); Council Regulation (EC) 139/2004 of 20 January 2004 on the control of concentrations between undertakings (the EC Merger Regulation) (2004) OJ L24/1. [33] See: Eleanor Fox, ‘We protect competition, you protect competitors’ (2003) 26(2) W Comp 149. [34] Case C-95/04 British Airways plc v Commission [2007] ECR 1-2331, Opinion AG Kokott, para 68. [35] Case 6/72 Continental Can : Europemballage Corporation and Continental Can Co. Inc. v Commission [1973] CMLR 199 [36] British Airways (n 149) paras 103-108 [37] Eleanor Fox ‘We protect competition, you protect competitors’ (2003) 26(2) W.Comp. 149; R Bork The Antitrust Paradox: A Policy at war with itself (Free Press, New York 1978) 160. [38] David Gerber, Law and Competition in Twentieth-Century Europe, Protecting Prometheus (Oxford, Clarendon Press, 1998) 240 [39] Nederlandsche Banden Industrie Michelin NV v Commission of the European Communities (322/81) [1983] ECR 3461, para 57. [40] Consolidated version of the Treaty on the Functioning of the European Union Protocol (No 27) ON THE Internal Market and Competition. [41] TEU (n 145), article 3(3) [42] Guidance on the EU Commission's enforcement priorities in applying Article 82 (n 147). [43] Case AT.40428 Guess [44] See: AT.40424 Capcom or AT.40420 ZeniMax. [45] Case C-31/85 ETA Fabriques d'Ébauches [1985] ECR 3933 [46] Case AT.40527 Kuoni; Case AT.40525 TUI [47]Nazzini (n 151) 15 [48] Drystone Pipe & Steel Co v US 175 US 211 (1899) 15 [49] Nazzini (n 151) 15. [50] Ezrachi (n 137) [51] ibid 4-14. [52] Ezrachi (n 137) 17. [53] European Commission, ‘Antitrust: Commission fines Google €4.34 billion for illegal practices regarding Android mobile devices to strengthen dominance of Google's search engine’ (The European Commission, 18 July 2018 accessed 18 May 2020. [54] Ariel Ezrachi, ‘EU Competition Law Goals and The Digital Economy’ (2018) Oxford Legal Studies Research Paper No. 17/2018, 9. [55] IS Rubinstein, ‘Big Data: The End of Privacy or a New Beginning?’ [2013] Int Data Priv 74, 78. [56] Elias Deutscher, Stavros Makris ‘Exploring the Ordoliberal Paradigm: The Competition-Democracy Nexus’ [2016] Comp LRev 181 [57] E Garces, D Fanaras, ‘Antitrust, Privacy and Digital Platforms’ Use of Big Data: A Brief Overview’ [2018] Journal of the Antitrust and Unfair Competition law Section of the State Bar of California 23, 25. [58] See: R Nazzini, ‘Welfare Objective and Enforcement Standard in Competition Law’ in U Bernitz & A Ezrachi (eds) Private Labels, Brands and Competition Policy (OUP 2009). [59] Nazzini (n 151) 16. [60] Facebook/WhatsApp (n 34) [61] European Commission - Press release, 'Mergers: Commission approves acquisition of LinkedIn by Microsoft, subject to conditions', (IP/16/4284, 6 Dec 2016); Microsoft/Linkedin (n 36) [62] ibid. [63] Alessandro Acquisti, ‘Privacy and Market Failures: Three Reasons for Concern, and Three Reasons for Hope’ [2012] J on Telecomm & High Tech L 227, 227. [64] Economides, Lianos (n 112) 14. [65] Gene Kimmelman, Mark Cooper, ‘A Communications Oligopoly on Steroids—Why Antitrust Enforcement and Regulatory Oversight in Digital Communications Matter’ (equitablegrowth, 2017) accessed 3 May 2020. [66] European Commission, ‘Notice on the definition of relevant market for the purposes of Community competition law’ 97/C 372/03 [1997] OJ C372/5, para 2. [67] M Motta, Competition Policy (Cambridge University Press 2004) 102. [68] Aleksandra Gebicka, Andreas Heinemann, ‘Social Media & Competition Law’ [2014] World Competition 149, 158. [69] ibid 159. [70] V. Reding, ’The EU Data Protection Reform 2012: Making Europe the Standard Setter for Modern Data Protection Rules in the Digital Age – Innovation Conference Digital, Life, Design’ (Munich, 2012, SPEECH/12/26) accessed 19 March 2020. [71] Case AT.39740, Google Search (Shopping), decision of 27 June 2017 [72] ibid. [73] Damien Geradin, Monika Kuschewsky, ‘Competition Law and Personal Data : Preliminary Thoughts on a Complex Issue’ (2014) 37 World Competition 69. [74] Gebicka, Heinemann (n 183) 158 [75] For instance, users would have certain expectations from Google and any other vertical search engines to meet their behavioural expectations, considering the quality elements as an unavoidable feature. [76] Nazzini (n 151) 17. [77] Henrique Schneider, ‘From Deontology to Pragmatism: Dynamics in the Pursuit of Goals of Competition law’ [2017] CORE 245, 254. [78] Nazzini (n 151) 17. [79] M Dold, T Krieger, ‘The ideological use and abuse of Freiburg's ordoliberalism’ (2019) University of Freiburg Diskussionsbeiträge, No. 2019-04 [80] Christian Alhborn, Carten Grave, ‘Walter Eucken and Ordoliberalism: An Introduction from a Consumer Welfare Perspective’ (2006) 2 Competition Policy International, p. 199/200 [81] Nazinni uses the example as of fairness for consumer law and Article 6 of the ECHR context; Nazzini (n 151) 21-22. [82] ibid 22. [83] ibid 22; R Nozick, Anarchy,State,andUtopia (BasicBooks 1974); Case T-271/03 Deutsche Telekom AG v Commission [2008] ECR 11-47, for recognition of ‘equality of opportunities’. [84] See J Rawls, A Theory of Justice (Harvard University Press 1999). [85] Nazzini (n 151) 22 [86] ibid. [87] Ezratchi (2018) (n 169) 13. [88] European Commission, ‘Report from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions’ 2016 Annual Competition Report (COM(2017) 285) 2. [89] Case 27/76 United Brands v Commission [1978] ECR 207; Case C-177/16 Autortiesību un komunicēšanās konsultāciju aģentūra (AKKA)/ Latvijas Autoru apvienība (LAA) [2017] ECLI; Deutsche Post AG (Case COMP/C-1/36.915) Commission Decision 2001/892/EC [2001] OJ L331/40. [90] Case C-209/10 Post Danmark A/S v Konkurrencerådet ECLI:EU:C:2012:172, para 21: Article 102 does not ‘seek to ensure that competitors less efficient than the undertaking with the dominant position should remain on the market.’ [91] Tsai (n 12). [92] Facebook case (2019) (n 1). [93] European Commission, ‘Staff working document accompanying the Report on Competition Policy 2016’ SWD (2017) 175 final, 59. [94] F Bosco, N Creemers, V Ferasaris, D Guagnin & B Koops ‘Profiling: A persistent core issue of Data Protection and Privacy’ in S Gutwirth, R Leenes & P de Hert (eds) Reforming European Data Protection Law (Springer 2015) 10, 50. [95] See G Skoumu & L Leonard ‘On-line Behavioural Tracking: What may change after the Legal Reform on Personal Data Protection’ in S Gutwirth, R Leenes & P de Hert (eds) Reforming European Data Protection Law (Springer 2015) 45. [96] Data protection was noted to be outside competition law protection, see case of Asnef-Equifax (n 33). [97] The Office of Communications, ‘Measurement framework for media plurality: Ofcom’s advice to the Secretary of State for Culture, Media and Sport’ (Ofcom, 2015) < https://www.ofcom.org.uk/__data/assets/pdf_file/0024/84174/measurement_framework_for_media_plurality_st atement.pdf> accessed 14 June 2020. [98] ibid para 9. [99] ibid. [100] Facebook/WhatsApp (n 34) [101] Microsoft/LinkedIn (n 36) [102] Case C-42/07 Liga Portuguesa de Futebol Profissional and Bwin International [2009] ECR I-7633, Opinion of AG Bot, para 245; Case C-203/08 Sporting Exchange [2010] ECR I-4695, Opinion of AG Bot, para 58. [103] Ezratchi (n 137). [104] ibid. [105] Harry First, Spencer Weber Waller, ‘Antitrust’s Democracy Deficit’ [2013] Fordham LRev 2543. [106] Nazzini (n 151) 22. [107] Google/DoubleClick (Case COMP/M.4731) Commission Decision [2008] OJ C184/10 [108] Elias Deutscher, Stavros Makris, ‘Exploring the Ordoliberal Paradigm: The Competition-Democracy Nexus’ [2016] Comp LRev 181. [109] Gene Kimmelman and Mark Cooper, ‘A Communications Oligopoly on Steroids—Why Antitrust Enforcement and Regulatory Oversight in Digital Communications Matter’. [110] Case no t-79/12, Cisco System Inc v Commission [December 11, 2013] 612 TJ 0079, para. 69. See also, Case No COMP/M.6281 - Microsoft/Skype [111] Cisco System Inc v Commission (n 225). 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GlaxoSmithKline [2008] ECR I-7139 [123] M Vestager, ‘Competition in a big data world’ DLD 16. < https:// ec.europa.eu/commission/2014-2019/vestager/announcements/competition-big-data-world_en> accessed 23 September 2019. [124] TomTom/Tele Atlas, Case No COMP/M.4854, Decision of 14.5.2008 [125] Arletta Gorecka, ‘Is "Privacy" a Means to Protect the Competition or Advance Objectives of Innovation and Consumer Welfare?’ in Maria Tzanou (ed) Personal Data Protection and Legal Developments in the European Union (IGI Global 2020), 119. [126] See Alex Chisholm, ‘Alex Chisholm Speaks about Online Platform Regulation.’ (2015) CMA accessed 14 March 2020 [127] Case T-201/04 Microsoft Corp. v Commission, Court of First Instance (September 17, 2007) [128] European Commission, ‘Agreement on Commission's EU data protection reform will boost Digital Single Market’ (Press release, 15 December 2015) accessed 9 May 2020. [129] Ariel Ezratchi, Maurice Stucke, Virtual Competition (Harvard University Press 2016) 226 [130] Orla Lynskey & Francisco Alves Da Costa Cabral, ‘Family Ties: The Intersection between Data Protection and Competition in EU Law’ [2017] Common Mkt L Rev 11, 21-22. [131] Christopher Decker, 'Concepts of the Consumer in Competition, Regulatory, and Consumer Protection Policies’ [2017] J Competition L & Econ 151, 156. [132] TFEU (n 8) article 106(1). [133] GDPR (n 10) articles 1(2) and (3). [134] Frank Pasquale, ‘Privacy, Antitrust, and Power’ [2013] Geo Mason L Rev 1009, 1011. [135] Pasquale (n 138) 1011. [136] FH Cate, V Mayer-Schongerger, 'Tomorrow’s Privacy: Notice and Consent in a World of Big Data’ [2013] Int’l Data Privacy L 67, 67-68. [137] Pasquale (n 138) 1011. [138] ibid 1012. [139] Paul Ohm, ‘Branding Privacy’ [2013] Minn L Rev 907, 984-985. [140] Kerber (n 39) 4 [141] See Gorecka (2020) 109 on the discussion of the path of data protection and competition law in the EU. [142] Complaint and Request for Injunction, ‘Request for Investigation and for Other Relief in the Matter of Google and DoubleClick’ [143] Data Privacy in European Merger Control: Critical Analysis of Commission Decisions Regarding Privacy as a Non-Price Competition Samson Esayas, European Competition Law Review, 40(4) (2019) pp. 166- 181 [144] ibid [145] Peter Swire, 'Submitted Testimony to the Federal Trade Commission Behavioural Advertising Town Hall on Google/DoubleClick', (2007). See EDPS Preliminary Opinion, ‘Privacy and Competitiveness in the Age of Big Data: The Interplay between Data Protection, Competition Law and Consumer Protection in the Digital Economy’ (2014). [146] Maurice Stucke and Allen Grunes, Big Data and Competition Policy (OUP, 2016); Kerber (n 39) 6. 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[169] European Commission, ‘Guidelines on the applicability of Article 101 of the Treaty on the Functioning of the European Union to horizontal co-operation agreements’ [2011] OJ C 11/1, paras 119-122 [170] J Schumpeter, Capitalism, Socialism, and Democracy (George Allen & Unwin, 1954); KJ Arrow, ‘Welfare and the Allocation of Resources for Invention’ in R Nelson (ed) The Rate and Direction of Economic Activities: Economic and Social Factors (NBER Books 2016). [171] A Lamadid, 'On Privacy, Big Data and Competition Law (2/2) On the nature, goals, means and limitations of competition law’ (Chillin’Competition, 2014) < https://chillingcompetition.com/2014/06/06/on-privacy-big-data-and-competition-law-22-on-the-nature-goals-means-and-limitations-of-competition-law/> 6 July 2020. [172] ibid. [173] ibid [174] Alessandro Acquisiti, Curtis Taylor, Liad Wagman, ‘The Economics of Privacy’ [2016] Journal of Economic Literature 442.

Today, for the members of the AIM Leaders Council, we had some meaningful discussion on Algorithmic Ethics for Good Business in today's meetup. I had discussed about Being Lawyerly to Build Ethical AI for Business, which was central to the following important points: - Converging Legal and Business Concerns towards Explainable AI - From Audits & Compliance to Conflict and Innovation Management - #Data4Development and Consumer Law Innovations towards Explainable AI In this meet-up, I had joined Ananya Roy from Deloitte. Her points on algorithmic ethics were insightful, especially: - human-centric future of technologies taking Moore's Law into regard - human perception of outsourcing operations to AI and Algorithmic bias - algorithms and ethical ambiguity - explainable artificial intelligence and self-perpetuating cycles On #AIEthics, I had also discussed the implications of the Competition Commission of India's orders on Google, the recently released Digital Personal Data Protection Bill, transitioning from digital inclusion to digital mobility and economic-ethical tech innovations. In case anyone wishes to read through the presentation document for the meetup, please feel free to DM me. I thank members of Analytics India Magazine for the invite.

ChatGPT, a sibling model of InstructGPT, has gained much traction recently. With over 1 million users and their interactions with this interesting chat model, the user reactions have amazed discourses on education, public policy, lawyering and many other things. However, the model's success so far is not a pessimistic development when it comes to technology governance. Let's take it this way: there are such technological models, which are evolutionary from a technical aspect. Achieving the edge obviously may be backed by technology hype cycles. However, there is no doubt that ChatGPT is a unique innovation, considering their reinforcement learning algorithms. While people may claim that this piece of technology is capable to replace Google, the generic use cases of this technology depends. In fact, it wasn't long ago when Meta had produced an algorithmic system, Cicero, to predict discourses in diplomacy, which they claim to be in the realm of AI Diplomacy. It is known that Cicero has achieved extraordinary scores in the strategy game at webDiplomacy.net. That is praiseworthy, and if the system is analysed at best, a lot could be understood about its generic and non-generic use cases. This article is dedicated to analyse the use of reinforcement learning via ChatGPT, based on its use cases / distribution relevance, from a regulatory and policy perspective. The article also provides conclusive insights on where the trajectory of reinforcement learning, could invite regulatory oversight, with a sectoral focus. Reinforcement Learning at a Glance Reinforcement learning (RL) is a subset of machine learning practices which are followed by developers and data scientists across the globe. It has a special place in the field of artificial intelligence and law, due to its ubiquitous features. RL is a kind of machine learning method, where any AI system (subject to learning the environments of the relevant data subjects for a set of tasks to be achieved expectedly) are reinforced or exhorted in a pattern, in a specific environment to maximise their notion of cumulative rewards. This reminds us of behavioural economics, wherein earning cumulative rewards is essential for an agent to act in a pattern they are ought to be. Now, using reinforcement learning, it is much possible to create proper use cases for the agent to learn an optimal / nearly-optimal, policy that incentivises the "reward function" or other user-provided reinforcement signal that accumulates from the immediate rewards. The products / services discussed in this article, ChatGPT, Cicero and GitHub Copilot are inspired by or based on reinforcement learning. Looking at policy realities as they stand, RL can be subject to heavy supervision protocols, which may succeed or fail in building the AI system, accordingly. For example, in the case of State-Action-Reward-State-Action (SARSA) model, RL algorithms are subject to cumulative rewarding. Here, cumulative rewarding is experienced by the algorithm when it has to act in line with a policy statement, which represents a probable set of things to be achieved. This is natural to happen in any SARSA setup. However, In the case of Deep Q-networks (which also evolves at the level of neural networks), the RL algorithm has to learn and self-explore to develop those self-reflected "policy considerations" along with the existent RL techniques in place. In the next section, certain products or services developed through reinforcement learning are analysed, to estimate their impact, purpose and limitations, from a regulatory standpoint. Regulating Reinforcement Learning Regulations cannot curb innovation. However, we are at a tipping point in various D9 countries, where at the vicinity of the proliferation of recognisable and usable disruptive technologies, if governments deny or overlook the issues attached with these technologies, then it is concerning. We also understand that multiple classes of artificial intelligence technologies of socio-economic and socio-technical value, have to be observed carefully, with a sector-to-sector regulatory approach. Governments have already started developed generalised and some sector-specific regulatory methods, especially on recommendation algorithms, recognition services, predictive algorithms and other relevant tech products / services of relevant categories including analytics. RL is a unique case but to make it simple (unlike recommendation algorithms, where narrow regulatory outlooks might help), some entrant regulatory breakthroughs could be helpful. Let's discuss ChatGPT to understand its scope. ChatGPT's Omnipresent and Omnipotent Features ChatGPT is a perfect, relevant and evolving example of omnipresent and omnipotent AI technologies. Let's understand how it works, as explained by the OpenAI Team. The diagram is quite self-explanatory, so let us analyse a set of sub-steps in every step. As per Step 1, the reinforcement learning algorithms are put into extensive use. Then, the output behaviour, converted into data, is used to fine-tune GPT 3.5 with supervised learning. This is interesting because anyhow, you have to encapsulate the AI system's lookout amidst the data available to it. In Step 2, the reward model ranks the outputs received. Now, Step 3 is an advanced version of the first two steps, where supervised policy is used to initialise the PPO (Proximal Policy Optimisation) Model. Now, the reward models (RMs) as created in Step 2 calculate the reward as denoted in this diagram, to use PPO to update the policy for supervising the system. Now, in ChatGPT, as per a blog written on March 3, 2022 by OpenAI, Reinforcement Learning from Human Feedback (RLHF) creates a third layer of reinforcement learning to make ChatGPT according to OpenAI, more "safe and useful". Let us look at Figure 3, where we have provided an excerpt of an example of how the same question asked to InstructGPT and ChatGPT really work. Taking this question into reference, InstructGPT would give you a blunt response, as the text indicates. However, ChatGPT does the opposite and the response seems to be explorative. This by itself, is iterative deployment. They also have a difficult task ahead, which they have described in their note on Aligning Language Models to Follow Instructions: Right now, InstructGPT is trained to follow instructions in English; thus, it is biased towards the cultural values of English-speaking people. We are conducting research into understanding the differences and disagreements between labelers’ preferences so we can condition our models on the values of more specific populations. More generally, aligning model outputs to the values of specific humans introduces difficult choices with societal implications, and ultimately we must establish responsible, inclusive processes for making these decisions. Achieving parity with multiple specific human groups, as per group and individual notations, would be tough task, which is why some regulatory perspective must be gradually developed. Here is a reference to a paper published by OpenAI researchers in 2019 on The Role of Cooperation in Responsible AI Development (2019, p. 13): Features that affect the likelihood and severity of a collective action problem for responsible development can be used to decrease its likelihood and severity if they are are features that we can control. For example, fundamental distrust between companies is likely to worsen a collective action problem because companies are less likely to expect that their cooperation will be reciprocated (high trust). Building trust between AI companies can therefore decrease the severity of collective action problems. Since ChatGPT is omnipresent and omnipotent, there is no doubt that self-sufficient efforts have already started to make the service more human-centric. Perhaps regulators across the world may differ on their oversight approaches. For example, Europe may approach ChatGPT with a human rights approach, because their scholarship in the EU and the Council of Europe refer human-centric AI as some AI system which is risk-sensitive or acts in line with the human rights obligations that apply in Europe. The United States will take a proactively open approach to it, where some State-level positions across California, New York and other tech-sensitive states may be important to look out for. India might take a responsibility and risk-centric approach from the perspective of clarity to comply with Indian regulations and laws. China would be unambiguously restrictive while ASEAN member states and Japan may be risk-centric as per their own capabilities and concerns. In short, leaving the high-handed approach that Europe and China may take, ChatGPT is safe as of now. However, where ChatGPT may become critical to be studied is the phenomenon of artificial intelligence hype. AI Hype, is defined as per VLiGTA-TR-001, our report for the Vidhitsa Law Institute: An Artificial Intelligence hype cycle is perpetuated to influence or generate market perception in a real-time scenario such that a class of Artificial Intelligence technology as a product / service is used in a participatory or preparatory sense to influence or generate the hype cycle. Since ChatGPT has become popular and relevant for multiple use cases that are being proposed, the risk of artificial intelligence hype is not going away. For now, considering the efforts such as RLHF put into use by OpenAI, it may be inferred that the general principled use of ChatGPT, from a commercial-technical perspective is sound. The bi-products developed by the help of ChatGPT, would be interesting to notice, since a lot multi-sector products and services would necessitate a different approach of self-regulation that OpenAI may have to opt for in future. DoNotPay is a recent example to ponder upon. Here is a tweet from Joshua Browder from DoNotPay: Let us take an example provided by Joshua Browder from DoNotPay about ChatGPT's use to develop legal statements: Joshua claims that ChatGPT may "replace lawyers". However, at least with limited accuracy, ChatGPT may ease a lot of legal statement drafting work, for normal issues for a lot of people. So, we had also tried out a few samples with ChatGPT to draft petitions. Nevertheless, if you read the responses by ChatGPT, some people may consider that these draft petitions are infallible and useful for their "daily" use. Anyways, that is not pragmatic because context-based analysis cannot be limited or crystallised so easily. Real use cases are far more complicated to handle. Plus, ChatGPT also challenges the element of trust in-built with human environments. Now, let us say that for any bi-product, you make some use of ChatGPT, obviously like it is in the case of Consumer Experience-based AI, you focus on technologically rendered experiences of exploration that the AI system offers. Whether it downgrades the economic necessity of human-involved trust is debatable, since the use of ChatGPT is yet to proliferate to even show any use cases, which has not been the case for now. It does not mean the system is to be discouraged. We can say that ChatGPT must be treated, as a quicker alternative to optimise exploration of knowledge, information, facts, anecdata and insights. That explorative involvement may differ with every use case, of macro and micro purposes. There is another issue with explorative involvement. Exploring something does not imply you know in an all-comprehensive manner about a subject-matter. ChatGPT is capable to give explanations but sometimes makes errors which could be referred to as "gaslighting" facts and anecdata in a jumbled and unclear manner. In fact, contrary to popular notion, ChatGPT may force the users to understand the basics of any explored knowledge, information, fact, anecdata or insight manually. If you as a user are aware of concepts and notions related to a subject-matter at a conciliable level, ChatGPT may be insightful for you to analyse and relook at your explorative involvement to find answers. However, the element of trust could be shaky, when it comes to information flow and economy, while using ChatGPT. Conclusion ChatGPT is a lucrative RL-based service which could be helpful to embrace sociotechnical mobility in some way. Like the algorithms run by various social media companies which have become general, bloated and omnipotent in use, ChatGPT's potential bi-products may become omnipotent and omnipresent as well, accordingly. A preliminary outlook could be needed since information warfare and overload, are critical problems for the knowledge societies that thrive in the digital world. How would ChatGPT affect the interconnected vulnerabilities attached with digital public and private products, is too crucial to ignore. In addition, the impact of ChatGPT on digital public infrastructure could be very necessary to look out for, in the future.

Introduction The relationship between plagiarism and art can be said to date back to the Roman Empire in 300 B.C, wherein the Roman elites were fascinated by the wealth and culture of Greek cities and demanded works of art which had semblance to Greek culture[1]. To match this demand Greek and Roman artists started making plaster moulds of famous Greek statues filling them with bronze and shipping them to Roman cities where they could be replicated in marble[2]. In the years that followed, things such as relics and artifacts also fell prey to the malpractice of forgery and plagiarism which lead to an increase in the rigour of authentication that was carried out to test the veracity of such art works[3]. In recent times however, the quality of these forged artworks has become so good that at times even esteemed auction houses such as Christie’s and Sotheby’s were unable to identify the real from the fake. One of such incidents took place in the 2000’s when both the auction houses received the same painting, Paul Gaugin’s Vase de Fleurs[4], an expert was later employed who was able to identify the real Gaugin from the forgery. In fact, now after an increase of such incidents Sotheby’s have hired an in-house art forgery expert who scrutinises the paintings before they are listed for auction[5]. Another important example with respect to plagiarism and paintings is the Mona Lisa, which has at least a dozen well-made copies and only the one which is displayed at the Louvre is quoted to be the original one[6]. Moreover, while the original Mona Lisa is actually valued at $834 million, a first-rate copy of the Mona Lisa was recently sold at an auction for $3.4 million[7]. The above quoted examples highlight two very crucial points, the first being that forgery in the world of art has been a common a practice but when it comes to physical art esteemed auctioneer’s like Sotheby’s have set up an internal mechanism to combat this malpractice[8]. The second point being that the monumental disparity in prices of the fake and the real Mona Lisa highlights the importance of ‘authenticity’ in the evaluation of art. A duo of researchers at Yale University Newman and Bloom in their research concluded that the value of art stems from the creative performance and the degree of physical contact with the original artist[9]. In other words, the artwork would be of a lesser value if it is identified as a forgery because then not only it would have no degree of physical contact with the original artist, but it wouldn’t have been created by the original artist in the first place[10]. Digital art even though being a relatively recent form of art in comparison to physical art, was also plagued by the same infirmities of plagiarism and forgery and unlike in physical art where methods have been developed to tell apart the real from fake, such a thing was almost impossible with respect to digital art unless the artist was able to procure a copyright in relation to the said art[11]. However, NFT’s have sparked a major revolution in the field of digital art and have resulted in exponential growth in the digital art market. As of September 2022, the NFT market has risen to $841 million. The inherent design structure of an NFT being minted on a blockchain based on a distributed ledger (DLT), gives it the characteristics of being timestamped, immutable and traceable have turned it into a valid of certification. In the case of digital art, the NFT is essentially being linked to that digital art and being used as a certificate validating the purchase of an online asset. Not only does this act as a certificate of ownership but also offers traceability because each NFT transaction is recorded on the DLT and now a customer who is buying the NFT can conduct their own due diligence by surveying the ledger and verifying the provenance of the digital art they want to purchase[12]. For the digital artists it also provides other benefits like royalty sharing via smart contracts, access to larger markets and reduction of intermediaries. Royalty sharing is essentially enabled through smart contracts which enable to automatic pay outs to the author on secondary sale of the NFT[13]. The royalty sharing requirements are encoded into a smart contract on the blockchain and are executed automatically when a transaction takes place[14]. NFT’s have also enabled the formulation of NFT marketplaces which are breaking the glass wall between famous and budding artists. Earlier only established artists would have had the opportunity to display their art in galleries and command an audience, and the smaller artists were limited to their social media accounts or other lesser visible platforms to display their art. But now with the help of these online marketplaces the middlemen which were needed to display an artists art work have been cut off and any art work is essentially the exhibited to the innumerable customers who log into these online market places. Issues with the present regime Despite all the new avenues that an NFT has opened for digital artists and the advantages that it provides, not all is merry in the land of NFT’s and there are still some grouses which the current structure of NFT’s seems unable to resolve. Firstly, NFT is often mistaken by its buyers as a certificate of ownership or a certificate of copyright transfer which is certainly not true in every case. In a usual smart contract involving an NFT just the right of personal use of that NFT is transferred and 100% ownership and other intellectual property rights remain with the original creator of the NFT, in fact such contracts are pari materia to when one buys a physical artwork[15][16]. A decentralised organisation called Spice DAO fell prey to this error when they bid $3 million on the NFT of the best-seller novel ‘Dune’, they were unaware that they had just purchased a digital copy of the book and not the rights to the book itself[17]. Molly White who’s a software engineer very succinctly elaborates on the issue and explains that when someone buys an NFT, “They've paid to have their wallet address etched into a database alongside a pointer to something. I wouldn't say they really ‘own’ anything at all.[18]” However, in certain cases NFT’s do transfer the ownership and the copyright only if the owner has programmed them to for example, in the case of Nike where they sold an NFT of virtual sneakers for $130,000[19]. Hence, unless the underlying conditions of an NFT specifically state that about the rights which are being assigned to the purchaser of such NFT, the customer shouldn’t assume otherwise. There still persists an active risk of fraud even after the creator of a digital artwork mints an NFT assigned to it. Theoretically multiple blockchains such as Solana, Binance Smart Chain, Cardano, Tezos etc allow for NFT’s to be minted on them and one can also mint an NFT again on the very same blockchain. This leaves room for scamsters to mint digital artworks of other creators and then presenting them on marketplaces as their own. Even though marketplaces like opensea.io and rarible on their websites promise to reduce fake NFT’s being uploaded, however, whether that promise translates to practice is a completely different story. An artist by the name of Aja Trier claims to have her art stolen and published 86,000 times and listed Opensea,io, these counterfeit NFT’s were only removed after she was able to garner social media traction about the issue. Opensea.io in their own report stated that over 80% of the artwork which was listed on their marketplace was either plagiarised or spam. Opensea.io in an attempt to reduce plagiarised artwork on their website limited the number of free listings that an artist can do on their platform but later had to take down this reform due to backlash by the artists. In the case of another digital artist Mary Campbell, she had her art minted into an NFT and listed on Rarible (which is a digital marketplace) by an unknown person[20]. An important detail in her case was that she had not minted a NFT of any of her artwork while this incident took place. The said person took a screenshot of her art created an NFT assigned to it and listed it for bidding at a starting price of $1200. The said person was later identified, and the listing was taken down. Campbell also reported the incident to Rarible but did not hear back from them. It can be inferred from the aforesaid cases, that these marketplaces are failing to undertake the requisite due diligence measures to verify the authenticity of the digital artwork which they list for sale. And from the cases of Aja Trier and Mary Campbell it is also highlighted that these marketplaces act dumb towards the concerns of digital artists and unlike art distributors or auctioneers instead of conducting the required authenticity checks before listing the digital artwork, have made the process of authentication an extrinsic task. They essentially leave it for the artist themselves to follow up on the authentication process in case a contingency arises[21]. Moreover, artists like Mary Campbell who are oblivious to such NFT marketplaces are more at risk of being exploited. And lastly the most major issue with respect to NFT’s is the legal ambiguities surrounding the technology. In many countries the tax liability in relation to income generated from digital assets has not been set and they are yet to come up with guidelines. Another issue is the legal validity of blockchain and smart contracts, for example in a country like India the validity of blockchain still hangs in the balance after the Supreme Court judgment which overturned the RBI order banning the use of crypto currency by Banks[22]. Furthermore, the Finance Ministry of India also made a statement that it is not planning a complete ban on cryptocurrencies and will allow windows for people to conduct experiments[23]. The law in countries like India and Indonesia is also silent on authentication and settlement of contracts which are a formulation of computer code[24]. The legal enforceability of smart contracts is also brought into question as they need to adapt to current legal contract frameworks across many jurisdictions[25]. Blockchain and smart contracts are the fundamental technologies which are needed to enable NFT’s to function the fact that there is legal uncertainties present in relation to them, casts of a big cloud over the future of NFT’s themselves. Conclusion Despite the aforesaid concerns it can’t be denied that the forthcoming of NFT’s has managed to turn a leaf for the digital artists and provided with a new source of income which they could never have imagined before. NFT’s have accomplished in provided much needed regulation and authentication to an otherwise unregulated art space and lead to the rise of a completely novel digital marketplace. Nevertheless, there is still major ground left to cover. The main reason why NFT’s were said to be beneficial for the world digital arts was their ability to provide time stamped, immutable and traceable data, but as has been clearly enumerated in the examples presented in this reflection paper, such attributes are failing to provide ‘authenticity’ to the digital artwork due to the inefficiencies of the NFT marketplaces. Hence, it becomes extremely crucial for those digital marketplaces that they bring in rigorous security measures to curb the spread of fake digital artwork on their platform, so that the nascent trust in realm of digital art can be maintained and nurtured. This trust would not only have to be fostered in relation to digital artists but also in relation to the consumers of such digital art. The platforms should also ensure the consumers clarity on the kind of rights that would accompany an NFT purchase, so that they don’t feel cheated and as a consequence demotivated to participate in the market again. A fledgling market can only flourish if all its stakeholders have something to gain by participating in it, which is why all its participants should strive towards creating a fair market, as this would help in achieving the twin of objective of kindling newfound demand and having a higher chance of obtaining legal sanction. References [1] Department of Greek and Roman Art, ‘Roman Copies of Greek Statues | Essay | The Metropolitan Museum of Art | Heilbrunn Timeline of Art History’ (The Met’s Heilbrunn Timeline of Art History) accessed 7 November 2022. [2] Id. [3] T. Lenain, Art Forgery The History of a Modern Obsession (Reaktion Books, 1st ed., 2011). [4] G. Newman, P. Bloom, 'Art and Authenticity: The Importance of Originals in Judgments of Value' (2011) Journal of Experimental Psychology . [5] S. Subramanian, 'How to spot a perfect fake: the world’s top art forgery detective' (The Guardian, 2018) accessed October 7, 2022. [6] ‘Forgery - Forgery in the Visual Arts’ (Britannica) accessed 7 November 2022. [7] Graison Dangor, ‘Fake “Mona Lisa” Sells For $3.4 Million' (Forbes, 18 June 2021) accessed 7 November 2022. [8] ‘Sotheby’s Hires Scientist, Addressing Art Market Wariness of Forgeries Post-Knoedler’, (Observer, 8 December 2016) accessed October 7, 2022. [9] Id. [10] Id. [11] ‘Are NFTs Worth the Hype?’ (The Economist, 3 February 2022) accessed 7 November 2022. [12] A. D. Popescu, 'Non-Fungible Tokens (NFT)—Innovation beyond the craze. 5th International Conference on innovation in Business, Economics & Marketing Research' (ResearchGate, 2021). . [13] Alex W Gomezz, ‘NFT Royalties: What Are They and How Do They Work?’ (Cyber Scrilla) accessed 7 November 2022. [14] Id. [15] Robert Goulder, ‘NFTs: The Basics And How To Tax Them’ (Forbes, 15 July 2022) accessed 7 November 2022. [16] Rishubh Agarwal, ‘NFTs: A Boon for Independent Artists or an “Ecological Nightmare Pyramid Scheme”’, (IPR Law India - Indian IP Law Resources, 24 February 2022) . [17] Baisakhi Mishra, ‘NFT Group Bought Dune for $3.04 Million Thinking It Was the Copyright’, (TechStory, 18 January 2022) . [18] Eric Ravenscraft, ‘NFTs Don’t Work the Way You Might Think They Do’ (Wired) accessed 7 November 2022. [19] Daniel Van Boom, ‘These Nike NFT “Cryptokicks” Sneakers Sold For $130K’ (CNET) accessed 7 November 2022. [20] Madelyn Alexander, ‘Digital Art Fraud Made Easy with NFTs’, (The Alabamian, 7 February 2022), accessed 7 November 2022. [21] Will Gottsegen, ‘NFT Forgeries Aren’t Going Away’ (Coindesk, 20 December 2021) accessed 7 November 2022. [22] 2020 SCC Online SC 275 [23] ‘Non-Fungible Tokens: Examining Its Legal Validity in India’ (NLUJ Law Review, 18 June 2021) . [24] Asia Law Journal, ‘NFT Regulations in India and Indonesia’ (Law.asia, 1 December 2021) accessed 7 November 2022. [25] M. Giancaspro, 'Is a ‘smart contract’ really a smart idea? Insights from a legal perspective' (2017) 33(6) Computer Law & Security Review, 825–835.

Digital technologies for sure are disruptive, and their potential to bring these unending changes, to be called as "disruptions" happen in threads. This means that even minute and subtle changes into any sub-segment of a class of technology's subset, can affect global markets at a considerable rate. Some disruptions may be considered natural and gradual, while some might be orchestrated to affect multiple sectors. Let us take a simple example. People may be aware of various kinds of IoT-based devices, which include sensors. Take an electric toothbrush. What are the factors or considerations that may surround the purpose of such a product? So, a commonsensical understanding says that the product is portable, the tracking system within the product provides a lot of data about the consumers who are using the toothbrush. If the toothbrush has some components that can also assess the condition of the teeth and the gums, then even that can be monetised and reduced into data. The understanding is this: when digital technologies cause disruption, it is obvious that the multi-sector, multi-circumstantial impact the disruption brings resembles interconnectedness. This is interesting because lawyers and policy thinkers rarely focus on the interconnectedness of technologies. Now, in the same case of the electric toothbrush, let us suppose you get the data and use algorithms to analyse the patterns, then the whole "responsible AI" paradigm comes in where you have to be compliant with some self-regulatory standards or a regulatory sandbox to assess the effectiveness of the algorithms. Then, the explainability of the algorithms also has to be checked because that determines the business model behind selling and manufacturing the electric toothbrushes beyond consumer law issues. Since, many technology companies who use AI technologies have to address such peculiar and interesting issues, oversight and regulation has become the buzzword. It depends how you use materialise either of them. You can involve the government to act as a regulator or create one, or you may have associations and bodies that can bring the bargain of multiple players on the table for consultation. Auditing and sandbox measures also can be used wisely. Alternatively, companies within their structure or a group of companies among themselves may create consultative or enforcing panels which can act in a "regulatory" fashion to conduct oversight. Recently, some trends have emerged among Twitter, TikTok, Meta and other technology companies, which affect the regulatory landscape in India, Europe and the United States. Taking a dive into the regulatory systems of the EU, China, the US and India, this article analyses the legal workability and fungibility of technology oversight and regulation within the big tech companies and the "Red Tech" (technology companies which are Chinese entities considering aspects of ownership). Regulatory Sovereignty: Recalibrations in the Global North & Reinventing Norms in the Global South Now, there is no generic dichotomy among major countries on this assertion that governments cannot leave technology companies, especially MNCs like Meta, Bytedance and others astray, and some regulatory systems need to be built and enforced, in the fashion that governments and stakeholders would be comfortable with. India is a special case where the government and the stakeholders are proposing unique technology governance models as we see the upcoming G20 Presidency in 2023. The European Union is building sophisticated regulatory frameworks beyond the GDPR already, while the Digital Markets Act is already in force. Anu Bradford has argued the rationale behind the EU's stringent approach to digital governance regulations and legal instruments (such as GDPR, for example) in The Brussels Effect: How the European Union Rules the World (p.140-41): While these internal motivations to integrate the European market provided the initial impetus for regulating data privacy, the EU’s current regulatory pursuits are also shaped by external motivations. Given the global nature of data processing and the importance of cross-border transfer of data—not just within the EU but across global markets—the EU has recognized the importance of promoting international standards for the protection of personal data. With the GDPR, the EU is thus also seeking to contribute to set the global standard on data privacy with other like-minded countries, cognizant that “if we do not shape standards now, others do,” emphasizing also that those alternative global standards that may emerge may be less desirable in requiring data localization, or leveraging data protection for censorship and state surveillance. [...] Foreign governments, companies, and business groups engaged in active lobbying to mitigate the costs of GDPR on their businesses. The US government was particularly active, opposing the regulation on the grounds that it would kill innovation and research, in addition to hindering national security cooperation. [...] Marketplace discourse is amenable to the idea that an individual consumer can trade his or her commodity—personal data—without strict oversight by public institutions. In contrast, EU institutions assume a strong role in the rights discourse where they have a central role in safeguarding the fundamental rights of its citizens. Alex Turk has described the distinctions between the United States and EU in a similar vein, noting how personal data is viewed as “tradable commodity” in the United States while considered “attributes of our personalities” in the EU. Now, compare this with India's vision of technology and data governance, in the realm of "good" digital public infrastructure (DPI). The larger focus of the Government of India is to build centralised initiatives and systems to safeguard and utilise citizen identity in the digital realm for their welfare and accessibility. Considering the classification of India 1, India 2 and India 3 made in the case of consumers across the country, it is clear that for this decade, the Government is doubling down on accessibility and inclusion in the digital realm, through simplified digital governance measures and promoting technology companies & start-ups (with its own bureaucracy-level features and pitfalls, which are natural when risks are undertaken for good). An article published on DPI by Observer Research Foundation entitled Creating ‘Good’ Digital Public Infrastructure explains this core aspect of Indian technology governance: DPI set up in areas critical to the functioning of an economy must be able to accommodate any unexpected increase in demand in the number of transactions or users, and also be able to respond to the evolving needs of a large and diverse set of users. Promoting and mainstreaming the use of open technologies—such as open-source software, and application programming interfaces and protocols, where anyone is free to access, use and share code—can be useful as they encourage collaboration and distribute the ability to solve population-scale challenges. [...] The technological and legal features of open technologies help governments avoid vendor lock-ins and, consequently, lower the costs of switching between vendors of proprietary software. The adaptability of open technologies is also useful in creating customised solutions tailored to local contexts. In other words, open technologies are a key enabler of citizen-centric innovation. If we take India and the European Union into perspective, it is determinant that both the actors have a citizen-sensitive and conscious ethic behind building facets of digital governance. The difference lies in this: Europe will focus on sophisticated regulations (which even India would need sooner than later) while India would embrace building optimal systems which redefine many aspects of digital inclusion, especially for countries in the Global South. When we analyse the recent orders passed by the Competition Commission of India against Google on OEMs and online payments, it seems apparent that the Government intends to reshape certain first principle points and methods towards shaping digital governance before they develop sophisticated regulations at a statutory level. The approach is rational because in general, India's rule of law and natural justice paradigms are not interpreted nor enforced with a proper sense at the district level. For example, the Section 66A of the Information Technology Act, 2000, which was struck down by the Supreme Court of India in the infamous Shreya Singhal case, was still used to prosecute individuals at the state level. Now, let us compare the US with the EU here for some perspective. When the Digital Markets Act came into being, the US Chamber of Commerce (USCC) expressed displeasure with the Biden Administration providing specific points of disagreement over the enforcing potential of the EU legislation. Sean Hather, the Senior Vice President of USCC explains the same in an article, whose excerpt has been provided therein: In reality, some of the concerns raised by the Biden Administration on the DMA are sensible. This also shows that sophisticated tendencies over technology regulation, could be expressly stringent, and their practicality may be affected. The European Union has to be sensitive and adaptive with a sector-to-sector approach to shape the paradigms of technology regulation. This is where the maximalist scope and tendency of regulatory systems must be rationed for good. This also shows that leaving countries like India, Singapore, Japan, Israel, the United Arab Emirates, Saudi Arabia and related countries, regulatory tendencies are acting in a maximalist fashion, which may yield some results. However, Europe's approach creates some dysfunction in their regulatory capacity, which could indirectly affect markets in the United States and even India. This comes in when big technology companies based out of the United States and China are found responsible for anti-competitive practices. When the expectations of a regulator are maximalist or impractical, it is apparent that major corporate players may hedge the turmoil and impossibility that comes with those expectations to shape their ways. In the next section, it is discussed how certain major big technology companies are shaping regulation and oversight paradigms. The Big Tech & the Red Tech Let us form some proper context here. The term Big Tech refers to technology companies in the West, including the FAAMG companies. The term Red Tech refers to several Chinese technology companies or technology companies owned by Chinese entities, public and private. When technology companies of the Global North are taken into perspective, we understand that at least despite their intervening and curbing tendency, at least there is a passive case to develop consultative and dispute resolution measures to resolve better sophisticated global legal norms and compliance methods. In the case of Red Tech, the paradigm is dissimulated and uncertain, due to the techno-economic relations among the US and Chinese business communities. Similar may be said when it comes to Indian and Chinese business communities, be it investors, technology companies, facilitators etc. From a legal perspective, the United States is different from China in adopting regulatory oversight wherein their regulatory landscape is still flexible and consultative. In the case of China, the approach is becoming protectionist, thereby an effort to decouple the impact of technology and finance ecosystems in the United States. For sure, China can do that in stealth mode to avoid risks easily and build economic resilience. However, the legal purpose of their regulatory visions is blurring day by day. A certain set of provisions in the Cybersecurity Law of China reflect the same tendency: Article 28: Network operators shall provide technical support and assistance to public security organs and national security organs that are safeguarding national security and investigating criminal activities in accordance with the law. Article 37: Critical information infrastructure operators that gather or produce personal information or important data during operations within the mainland territory of the People’s Republic of China, shall store it within mainland China. Where due to business requirements it is truly necessary to provide it outside the mainland, they shall follow the measures jointly formulated by the State cybersecurity and informatization departments and the relevant departments of the State Council to conduct a security assessment; where laws and administrative regulations provide otherwise, follow those provisions. Here is an excerpt from the Regulations on the Management of Security Vulnerabilities of Network Products approved by the Ministry of Industry and Information Technology in China, giving a clearly dissimulated outlook towards regulation and oversight. This is where the Chinese model could get counterproductive when their regulatory landscape is dissimulated enough to become complicated. The US and Europe are stuck with the economic risks attached to the technology companies, while the Chinese have over-stringent regulations with steering some efforts towards building an economy of innovation (with Chinese characteristics). India's role becomes prone towards promoting technology for socio-economic development, which is reasonable for the global economy to promote entrepreneurship and better economic practices. Let us now estimate how certain technology companies have achieved or addressed the legal avenues of regulation and oversight. TikTok's Issues on Surveillance and Auditing Tiktok has been contentious due to its data and company ownership issues for long. However, the potential of a low-attention spanning app to surveil populations was not properly understood by several governments in the North Atlantic region. In 2020, India had banned the App among many of Chinese origin or ownership due to these subtle privacy and security issues. The justification of the Government of India was backed by two concerns, data privacy-security issues and international trade law applied on national security considerations, taking into reference that there were border clashes at Galwan in June 2020. Recently, the United States has raised concerns on Tiktok's surveillance features. Emily Baker-White explains this in an article for Forbes: But an important factor distinguishes ByteDance’s planned collection of private users’ information from those cases: TikTok recently told lawmakers that access to certain U.S. user data — likely including location — will be “limited only to authorized personnel, pursuant to protocols being developed with the U.S. Government.” TikTok and ByteDance did not answer questions about whether Internal Audit executive Song Ye or other members of the department are “authorized personnel” for the purposes of these protocols. These promises are part of Project Texas, TikTok’s massive effort to rebuild its internal systems so that China-based employees will not be able to access a swath of “protected” identifying user data about U.S. TikTok users, including their phone numbers, birthdays and draft videos. This effort is central to the company’s national security negotiations with CFIUS. [...] Oracle spokesperson Ken Glueck said that while TikTok does currently use Oracle’s cloud services, “we have absolutely no insight one way or the other” into who can access TikTok user data. “Today, TikTok is running in the Oracle cloud, but just like Bank of America, General Motors, and a million other customers, they have full control of everything they're doing,” he said. It is also clear that to express considerations to promote "transparency", Tiktok has made some express disclosures on privacy policies for European users. Here is an excerpt from the report: TikTok updated its privacy policies for European users on Tuesday, adding explicit disclosures that personal data from the app may be viewed by employees in China. [...] In addition to China, TikTok data may be handled by employees in countries including Brazil, Canada, Israel, Japan, Malaysia, the Philippines, Singapore, South Korea and the US, the company said. Access to European user data, TikTok added, is allowed for “certain employees within our corporate group” and is “based on a demonstrated need to do their job.” Observing this clearly shows that governments in the North Atlantic region are not developing clearer self-regulatory measures, considering the fact that Chinese entities can bear legal justifications for any dissimulated measures to create confusion and uncertainty over their compliance ethics in practice. Outright ban may be possible but the problem with oversight and regulatory ethics is not limited to jurisprudence in a top-down fashion. Restrictive laws can be made, but regulations work when the economic and political coordinates that affect how such regulations and measures may work, are understood. Economic uncertainty looms in due to the interpenetrated relations among Western and Chinese business community people and the directed usage of the technologies among people, not just from an angle of purpose, but also precision. Political uncertainty has less to do with the need to regulate. All regulatory and oversight bodies of any hierarchy are created to develop political consensus within a legal and administrative polity to involve stakeholders. Governments in the North Atlantic region have to develop practical interests to shape their regulatory landscape. For example, the concerns raised by the US Chamber of Commerce on the EU's Digital Markets Act (DMA) may be genuine. However, even some generic implementation of the GDPR (which also is a stringent regulation) was made possible. The European Commission may not conflate GDPR violations with antitrust issues directly, but they can use the sophisticated nature of GDPR and even the DMA to enable some interconnected impact of their regulatory strength. Some hedging has to happen because it is inevitable that maximalist positions (if based on first principles, which is the case with DMA and GDPR to some extent) can be diversified by several countries. In short, territorially, the EU is the epicentre of regulation-related disruptions, which even China intends to be. The problem is this: on data and antitrust, many markets including India are already critical of China. That is not the case with Europe. Of course, the situation with Tiktok shows that dissimulated and protectionist conduct in tech regulation may yield some hedged results, but cannot be pushed further in the long-term aspect. Elon Musk's Ever-dynamic Approach for Twitter There is no doubt that Elon Musk has a special ambition for Twitter. Most of the measures regarding content moderation have not changed. A decision has been made to form a content moderation council for managing Twitter. Much cannot be stated from a legal perspective except some trends regarding the App's moderation and advertising avenues. To keep Twitter paid or not as a whole or in different segments of use is not a legal issue, but to ensure compatible moderation standards and avoid clickbait advertising and hateful & deceitful conduct on the App could be intriguing. Making Twitter a private company has also to do with the lack of clarity the algorithms have as they process user tweets and encourage users to engage, which could become a legal dilemma if free speech is manipulated by algorithms to keep encouraging users to give reactive and overtly contrarian opinions on the platform. Additionally, Twitter has to address the role of technology regulation bodies across the world, including those in India, especially under the IT Rules of 2021. Musk had tweeted once that Twitter has to abide the laws and rules of the countries across the world and free speech laws of those countries are the prerogative of their system and people. Twitter also causes antitrust issues by making US stock markets volatile by mere tweeting on cryptocurrencies and company shares, which also can be addressed if possible. From a competition and data law perspective, Twitter may create a better example of technology regulation and effective business models if the flaws are addressed properly. Apple's Security-Privacy Dynamic Apple's business angle on their guarantees on Privacy against advertisements and the dispute with Facebook explains their security-privacy dynamic. For sure, Apple's products offer security options and convert their privacy-security options into business considerations. There are some genuine concerns shared by Spotify, Meta, Google and others on the 30% commission for hosting on the App Store. Interestingly, the case of antitrust breaches by Apple in India filed by Tinder is unique. Here is an excerpt which explains the reasons why had Tinder filed the same: Match argues in its India filing that users in other countries often prefer to use payment methods which Apple does not permit, and in India a state-backed online transfer system was preferred. "Apple is therefore leveraging its dominant position in the iOS App Store market, to promote the exclusive use of its own payment solution," Mark Buse, head of global government relations for Match, said in the filing. Even when the Competition Commission of India had imposed penalties on Google on the OEMs and the Android Device Ecosystem, their explanation on the non-substitutability of the Play Store and the App Store is intriguing: Apple’s business is primarily based on a vertically integrated smart device ecosystem which focuses on sale of high-end smart devices with state of the art software components. Whereas Google’s business was found to be driven by the ultimate intent of increasing users on its platforms so that they interact with its revenue earning service i.e., online search which directly affects sale of online advertising services by Google. [...] The Commission examined the substitutability between Google’s Play Store for Android OS and Apple’s App Store for iOS from the perspective of all three demand constituents and found that there is that no substitutability between Google’s Play Store and Apple’s App Store. The CCI further noted that there might be some degree of competition between the two mobile ecosystems i.e., Android and Apple, however, that too is also limited at the time of deciding as to which device to buy. At that stage also, the CCI was of the considered view that the primary and the most significant factor in the mind of an end user is the hardware specification and the device price. While antitrust is a genuine area where Apple could be affected in the North Atlantic region, another issue which Apple has to resolve is their impact on small businesses and the algorithmic dragnet which affects several users. Ben Thompson explains the impact of Apple's App Tracking Transparency (ATT) policy in Stratechery: One of the interesting aspects of the company’s App Tracking Transparency (ATT) policy is that it very much touches on property rights. Most of the headlines (and, frankly, impact on advertising earnings) are about the unique Identifier for Advertisers (IDFA); post-ATT you only get the IDFA from end users if they agree to Apple’s prompt about tracking (which, it’s worth repeating, is much scarier than Apple’s own prompt). Apple can enforce this on a technical level: if you don’t agree to the prompt, then iOS simply doesn’t give you a valid IDFA. [...] However, ATT goes much further than this: it also decrees that you cannot “track” users using any other method; for example, a merchant as part of a sale almost certainly captures a user’s email address. However, that merchant cannot share that email address with Facebook, which would allow Facebook to match that purchase to an ad shown to a user with the same email address. Apple is not blocking this technically — all of this communication would happen on a server-to-server basis, not via the user’s iPhone — but they are blocking it legislatively, with the threat of App Review blocking the Facebook app. Conclusion Dysfunction is a real threat to self-regulation and owning the sophisticated and dissimulated form of operations that technology companies aspire for. There is some public discussion in place about the need to have public utility declared over platforms like Facebook, Twitter and others, by governments, in the US, India and other places. The problem yet remains unresolved even if that is being thought of: tech companies do not disclose enough and governments still fail to understand how the element of technology as a realm can be adjusted with the human element of accountability, privacy, foresight and explainability. There are genuine issues with political clarity but consultative engagement, for sure would legitimise the oversight and regulation bodies. Legal workability is the key to shape soft law principles which can be helpful.

The idea of a parallel virtual world has intrigued minds since several decades. The advent of the metaverse has created such possibility into a reality, resulting in significant benefits for users and business entities alike. The metaverse is an enabler for users from different parts of the world to engage in gaming, entertainment, social and business-related activities through a virtual medium in a digitally parallel world leading to creation of wealth, opportunities and recreational value. Since several transactions take place on a recurrent basis in the metaverse, the scope for Governments to tax such transactions also have immense potential. However, it is necessary that the methods and medium of tax do not deter the development of the metaverse in any manner. Similar to jurisdictions across the world, metaverse adopters in India have continuously been on the rise, consequently resulting in the increase in taxable transactions. However, the opportunity to tax has been undermined because of the absence of an effective mechanism to levy and collect such tax on metaverse transactions. With effect from 01st July 2017, a unified indirect tax system known as the Goods and Services Tax was implemented. Till date, several difficulties and ambiguities exist in the levy and collection of Goods and Services Tax on metaverse transactions and therefore, the present article is aimed at identifying concerns and addressing them with the goal of proposing more clarity in respect of Goods and Services Tax on Metaverse transactions in India. Understanding the Metaverse As evident from Figure 1 above, the Metaverse is a virtual world, parallel to the real world wherein users interact by way of digital avatars created by them. Depending upon use cases, the users may immerse in the Metaverse by using virtual reality in order to enhance their experience. There are tremendous use cases and the most prominent ones which have been seen so far are gaming, entertainment uses, advertisement of products, a host of virtual economic activities using cryptocurrencies or barters of non- fungible tokens, purchase and sale of assets in the Metaverse, content creation leading to the development of the Metaverse itself, conduct of social, collaborative and virtual events and planning, designing and testing activities in the Metaverse for potential products which may be offered in the real world. The list exponentially continues to grow recurrently, and it may not be surprising to see full- fledged livelihoods being supported by the numerous potentials of the Metaverse in the near future. From the Indian perspective, there is increasing interest and adoption of the Metaverse amongst Indian users. Data suggests that more than 5 lakh Indian users have shown interest in being a part of Metaverse projects up till the end of last year, making it fifth (5th) in the world in rankings of user interest in Metaverse projects. Due to the immense potential and possibilities of Metaverse in India, it is necessary for legal challenges to be addressed. Although legal challenges emanating from the Metaverse will span several specializations of law, this article is strictly focused on Goods and Services Tax (India’s indirect tax system) on Metaverse transactions. Basic Outline and Structure of the Goods and Services Tax Law in India Figure 2 above showcases that several statutes and rules emanating from such statutes are a part of the Goods and Services Tax law in India. The Central Goods and Services Tax Act, 2017 and the State Goods and Services Tax Act, 2017 concurrently apply to intra- state transactions, i.e., within the boundaries of the State itself. The State Goods and Services Tax statutes are in the names of the respective States such as the Madhya Pradesh Goods and Services Tax Act, 2017, Maharashtra Goods and Services Tax Act, 2017 and so on. Similarly, where business transactions are carried out within a Union Territory then the Central Goods and Services Tax Act, 2017 and the Union Territory Goods and Services Tax Act, 2017 have concurrent application. The concurrent application of these laws is a manifestation of co-operative federalism between the Centre and the States which is imbibed in the Goods and Services Tax law. The Central, State and Union Territory laws have delegated legislation in the form of the Central Goods and Services Tax Rules, 2017, State Goods and Services Tax Rules, 2017 and the Union Territory Goods and Services Tax Rules, 2017 emanating from the parent statute. In inter- state transactions, imports and exports, the Integrated Goods and Services Tax Act, 2017 and its delegated legislation, the Integrated Goods and Services Tax Rules, 2017 are applicable. The Goods and Services Tax Settlement of Funds Rules, 2017 conjointly emanate from the Central Goods and Services Tax Act, 2017, Union Territory Goods and Services Tax Act, 2017 and the Integrated Goods and Services Tax Act, 2017 prescribing reporting and compliance standards for the Government in order to ensure effective distribution of Goods and Services Tax Revenue as per the scheme and mechanism envisaged under the law. The Goods and Services Tax (Compensation to States) Act, 2017 and its respective delegated legislations such as the Goods and Services Tax Compensation Cess Rules, 2017 and Goods and Services Tax (Period of Levy and Collection of Cess) Rules, 2017 explicate the levy of Cess on the amount of Goods and Services Tax on luxurious goods and demerit goods with the purposes of compensating the State Governments for the losses incurred by them on account of the change in indirect tax system in India. Under the scheme of the Goods and Services Tax law in India, the subject matter of tax is “supply” which can include supply of goods, supply of services or supply of both goods and services in mixed or composite form. For the purposes of classification of goods, alignment is made to the First Schedule of the Customs Tariff Act, 1975 which in turn is aligned with the Harmonized Commodity Description and Coding System (referred to as the Harmonised System of Nomenclature or HSN in common parlance). For the classification of services, the Central Board of Indirect Taxes & Customs has devised the Services Accounting Code (SAC) which is based on the United Nations Central Product Classification. As far as the rates of Goods and Services Tax and exemptions are concerned, they are prescribed by way of Notifications for both goods as well as services. Principally, the rates of Goods and Services Tax as prescribed in the Notification are 0.25%, 3%, 5%, 12%, 18% and 28%. Determining and Identifying Nature of Transaction and Charge of Goods and Services Tax The first and foremost challenge which will have to be addressed and solved in respect of Metaverse transactions would be to determine their nature as either goods or services. Before moving forward, it is necessary to explicate that in order to avoid multiplicity in provisions, the provisions of the Central Goods and Services Tax Act, 2017 have been adopted by the State, Union Territory and Integrated Goods and Services Tax legislations and therefore, the definitions of the Central law would apply to all other Goods and Services Tax statutes as well. The term ‘goods’ has been defined under Section 2(52) of the Central Goods and Services Tax Act, 2017 to include all movable property including actionable claims and things attached or forming part of land but excludes money and securities. The term ‘services’ has been defined under Section 2(102) as anything other than goods, money or securities and has included activities related to either use or conversion of money. Under the Goods and Services Tax system, digital goods are treated as services by way of legal fiction through powers conferred under Section 7(3) of the Central Goods and Services Tax Act, 2017. In furtherance of this, the concept of ‘online information database access and retrieval services’ was envisaged, and the supply of digital goods has been subjected to the ‘services treatment’ for the purposes of levy and collection of Goods and Services Tax. Therefore, the nature of Metaverse transactions irrespective of whether digital goods or digital services are being provided, would be treated as “service” for the purposes of levy and collection of Goods and Services Tax as online information database access and retrieval services. To illustrate, irrespective of whether a Metaverse user sells virtual property or hosts an event for which consideration is collected, it would still be treated as a “service” by way of legal fiction. The second challenge which will have to be addressed and solved is identifying if Goods and Services Tax has to be paid on forward charge or reverse charge basis on Metaverse transactions. For this, it is necessary to first understand the scope of online information database access and retrieval services which is explicated by way of the table below. The aforesaid table showcases the scope of online information database access and retrieval services as provided under Section 2(17) of the Integrated Goods and Services Tax Act, 2017. Transactions in the Metaverse would also be covered under its ambit since the indicative list of online information database access and retrieval services is an inclusive and detailed list capable of covering activities of the Metaverse. Coming to the issue of forward charge or reverse charge, the figure below demonstrates the different scenarios and links it with the forward or reverse charge payment postulated under the scheme of the Goods and Services Tax law. Figure 4 above envisages five scenarios. First is where the supplier of service as well as the recipient of service in a Metaverse transaction are located within India. In such instance, the Goods and Services Tax will have to be paid under forward charge. This means that the supplier of service will collect the applicable tax amount from the recipient of service along with the consideration amount and pay it in the Government Treasury. The second scenario is where the supplier is located outside India and the recipient of the service is located in India having valid Goods and Services Tax registration. Under such circumstances, Goods and Services Tax will have to be paid under reverse charge. This means that the supplier cannot collect any Goods and Services Tax amount from the recipient and the recipient itself will self- assess and deposit the applicable Goods and Services Tax in the Government Treasury. The third scenario is where the supplier is located outside India and the recipient is located in India, but being an end consumer is not registered under the Goods and Services Tax law. Under such circumstances, the supplier will have to deposit Goods and Services Tax on a forward charge basis even though it is located outside the taxable territory. For this purpose, the concept of non- residential taxable person has been stipulated under the Goods and Services Tax law. The fourth scenario is where in the Metaverse transaction, the supplier is located in India but the recipient is located outside India. In this transaction, Goods and Services Tax will have to be paid on forward charge basis and the supplier will pay the Goods and Services Tax amount after collecting the said amount along with consideration from the recipient of service who is located outside India. The fifth scenario is where both, the supplier as well as the recipient of service are located outside India and thus, Goods and Services Tax is not leviable. Classification of Metaverse Transactions under GST Since the nature and liability of tax in Metaverse transactions have been discussed, it is necessary to now address classification of such transactions. The Tariff Heading where Metaverse transactions can be classified is Heading 99.84.39 which reads as, “Other on-line contents nowhere else classified” and the rate of tax applicable is 18%. This is because any transaction which occurs in the Metaverse would be nothing but transfer of data over the medium of internet and such transfer of data over the medium of internet would be treated as “online content” for the purposes of Goods and Services Tax. For example, if a user decides to build a house in the Metaverse or purchase a car in the Metaverse then it would, in the core sense be transfer of data over the medium of internet classifying it as online content being supplied as online information database access retrieval services for the purposes of levy and collection of Goods and Services Tax. Valuation of Metaverse Transactions under GST The next challenge which requires to be addressed is valuation under the Goods and Services Tax of Metaverse transactions. Section 15 of the Central Goods and Services Tax Act, 2017 read with Rules 27 to 35 of the Central Goods and Services Tax Rules, 2017 stipulate the valuation provisions. When payment for a Metaverse transaction is made in Indian currency, then there would not arise any problems since the general valuation provision under Section 15(1) of the Central Goods and Services Tax Act, 2017 which states that the transaction value would be the price actually paid or payable and Goods and Services Tax at the rate of 18% would be attracted on such price. However, payments in the Metaverse are also being made in cryptocurrencies which are not recognized as legal tender in India and thus, will constitute as barter. The scope of supply as envisaged under Section 7 of the Central Goods and Services Tax Act, 2017 embraces barter transactions and therefore, levy and collection of Goods and Services Tax have to be made on barter transactions as well. For cryptocurrencies, it is a challenge from the Indian context to conduct valuation for the purposes of Goods and Services Tax. Rule 27 read with Section 15(4) would become applicable in such instance and the open market value of the supply will determine the value of supply. This means that in case payment is made in cryptocurrency in a Metaverse transaction, then the market value of the cryptocurrency on the date on which payment is received by the supplier (as per time of supply provision under Section 13 of the Central Goods and Services Tax Act, 2017) would become the value and Goods and Services Tax at the rate of 18% will have to be paid on such transaction. Conclusion In view of the discussions undertaken in the present article, it is quite clear that several challenges exist for taxpayers and tax administration alike in levying and collecting Goods and Services Tax and it is necessary for such challenges to be taken up during the Goods and Services Tax Council Meetings and consequent mechanism to be created in order for there to be better clarity in respect of levy and collection of Goods and Services Tax on Metaverse transactions.