by Sivapriya Ambalavanan & Arth Misra
Earlier in 2019, the Web and Mobile Association of India formulated a code to watch and regulate the content of online curated content providers (now mentioned as “Intermediaries” within the IT Rules, 2020). However, the two-tier mechanism provided within the Code did not successfully tackle the increasing number of complaints arising, thanks to certain disputable content showcased on OTT platforms. The rising disputes with the content on these OTT platforms led to the formation of these Rules. These Rules are the government’s primary focus amidst the strain over censoring digital content. As the government wants to encourage new media platforms to engage in business in India, the content displayed on such platforms shall be heavily guarded by the principles prescribed, within the precise time-frame as determined by the authorities.
The Ministry of Information Technology and The Ministry of Information Broadcasting, to ensure a soft-touch oversight mechanism in relation to social media platforms, OTT platforms and digital media, have formulated the new IT rules, 2021. Within the rules framed, social media platforms would be required to appoint resident grievance officers within the country. In the case of the removal of any content, these platforms would be required to inform the users and provide reasons for the same. Also, some social media platforms will be required to disclose the information of the first originator of any content in case of any complaints to the authorities. Similarly, to regulate digital media intermediaries, a three tier oversight mechanism is being proposed, which include representatives from the ministries of Defense, External Affairs, Law, Information Broadcasting, IT, Women and Child Development. The suo motu powers of the Inter-Departmental Committee would enable it to take decisions, to call hearings on the complaints of violations of the rules based on its discretion.
The aspect of self-regulation in the case of OTT platforms, provides a guideline to mark what is considered lawful, decent etc. The procedure of self -regulation also applies to all of the other forms of media as well. The feature of self-regulation in the first tier of the grievance mechanism, wherein any person having any grievance regarding the content published by the publisher shall raise their grievance directly to the publisher through the grievance officer appointed by them. The smaller digital media publishers have raised concerns with this added cost of hiring the grievance officer. The aim of having a grievance officer is for consumers, to file complaints against information presented on any of the platforms. The grievance officer decides on if the complaint has to be upheld and action taken. The rules also mention a second-tier mechanism, where many digital media publishers come together to form associations and these associations act as an oversight body, ideally chaired by a person as per Rule 12 (2) of the new IT Rules.. This has also faced criticism for increased administration procedures and cost for small companies. The third-tier of the mechanism has its genesis from the government, where it would establish an inter-ministerial committee, which would consist of the secretaries to the Government of India (Key ministries). Many platform owners like Frontline, Business Today, Wire, NASSCOM and others, had highlighted how this would lead to increased media censorship by the government and a curb of the ‘Freedom of Speech and Expression’ according to ‘Article 19’ of the Indian Constitution. Privacy advocates consider the rules as important, but also view the rules as a means to infringe the rights of the citizens. The issues of the platform owners and their end-to-end- encryption and consumer protection policies, which would be contradicting, were also considered. Many scholars have emphasized that the rules are an overreach by the government, and go beyond the existing ambit of the Information Technology (IT) Act.
Though, the government had highlighted that the new rules would not infringe the rights of freedom of speech and expression of the citizens. Nonetheless, many still view the rules as a harm to the rights, and as a subject to legal challenges. It has also been elaborated, by those against the rules of the government, that the various provisions of the Rules like traceability, harsh content to be taken down, timelines for action, automated content filtering and others as blunt and disproportionate to the intention behind changed rules.
The need for responsibility of freedom on such platforms, where it has been ensured that the information and data are not misleading is essential in the case of a large democracy like India. It is important to understand the difference between misinformation, disinformation and fake news. When a fake news is passed on, in the case of a narrow interpretation, it could lead to a charge of sedition. If it is liberally interpreted, it could be seen as misinformation and called as untrue. In the case of a more liberal approach, the information would be seen as incorrect and not even worthy of denial. This depends on an individual and how they view propaganda of an establishment. With a vague definition of fake news and its subjective interpretation, there are various cases, like the Kashmir journalists posting fake news on twitter with regards to the COVID 19 crises, the news on Punjab for not having ventilators for COVID patients and other such similar news. The fundamental right of freedom of speech cannot be applied arbitrarily. The new changes in rules, would lead to this government agenda based arbitrariness which is feared by the small and upcoming platforms.
In India, the district and state-wide internet shutdowns are also seen as mechanisms to curb on Articles 14, 19 and 21, wherein these are justified in the name of breach of peace. In most cases, it has been noticed that shutdowns are deployed when authorities realize the advent of a violent protest, critical of the State. For instance, in Allahabad, the High Court, took Suo moto cognizance of internet shutdowns, which was imposed in the city, while issuing notices, observed that the stoppage of internet services and its effects on the judicial system. Also, in the case of Anuradha Bhasin, the Supreme Court in 2020, when deciding upon the legitimacy of internet shutdowns, did not declare internet as a fundamental right, but declared that “the right to freedom of speech and expression under Article 19(1)(a) and the right to carry on any trade or business under 19(1)(g), using the medium of internet is constitutionally protected.” Privacy advocates reiterated, it is time for the government to realise that the people of this country mean well and as in any democracy, they are bound to different points of view. These must be respected – otherwise the fabric of our society might disintegrate, and fraternity, one of the key words in the preamble to our Constitution might just become another dead idea.
The Rules impedes the freedoms of the citizens, and digital platform owners have also identified an inappropriateness with the constitution of the top-most body(Inter Departmental Committee) with an authorised officer and a MoIB Secretary. The questions of impartiality and the approach that would be chosen by such officers, were also seen as major threats. The media platform owners have also identified certain grey areas within the rules and the uncertainties that could be created. For example, both the association and its oversight committee has to be registered with the government. There are high possibilities of nudging and preferential based selection and choices. In the case of the grievance redressal mechanism, it has been established that the inter-ministerial committee could intervene at any point and provide instructions for taking down posts or shutting down the website for a period of time, which would increase the powers of the government in digital media. It has also mentioned that if a news is only published on an online media and not on print versions or vice versa what actions would be undertaken, once the rules are implemented which of the compliances do the companies have to follow and such others. The Indian newspaper The Hindu on March 1st, 2021 in the last line of their editorial, viewed the role of governments as predators rather than watch dogs and further concluded that the new rules would just provide the government a vicious presence into the practice of journalism.
On the contrary, to the views mentioned above, certain advantages have also been agreed upon for example by the digital media publishers, like the registration of all platforms with the government will ensure accountability of the organizations. Further, the requirement to inform users “at least once every month” of the content which is take down and termination of access policies which provides the intermediaries ways to stay ahead to prevent any issues, and ensure compliance reports are provided to users. This would also ensure responsibility of the intermediaries towards the content posted to create a safe and suitable environment for its users.
In conclusion, it can be stated that most media platforms, intermediaries and owners, have shed a negative light on the rules. Though there exist certain aspects of relief, the process is considered to be more regulated than earlier and will accrue larger costs for intermediary companies. The government has aimed to bring these rules to regulate the OTT, digital and social media platforms, yet it has been recognized that the regulation would lead to more government censorship on media. Nonetheless, the rules have been proposed and are yet to be implemented, hence the final code is required for better clarity and aspects of implementation.