THE LEGAL ANALYSIS OF NEW RULES FOR DIGITAL MEDIA AND OTT PLATFORMS

Reading time : 12 minutes

Nowadays, digital media platforms have become a new place for the mass to express their opinion and expressions. These platforms include social media and OTT platforms that are now vastly used for watching shows, sharing views, connecting with other people, doing online business etc. It also bridges the gap between content creator and the large audience and makes people know about new concepts, ideas etc. But as the rapid growth of this digital space has increased, concerns related to its misuse has also been raised. And this leads us to an ongoing debate on the regulation of these online platforms around the world.

In India, the issues related to online platforms came into the limelight in the year 2018, where the Apex court of India, in the case of Prajwala v. Union of India (2018), observed the need to regulate the content on the online platforms and said that Government of India may frame the necessary rules and regulations regarding these digital platforms to eliminate the content related to pornography, nudity, rape etc. After the remarks given by Supreme Court, the Government also observed the rising problem of inappropriate content sharing on online space that includes obscene and pornographic, violent and aggressive content along with the glorification of certain crimes and criminal characters that can spread hate and disharmony among people. And decided to form a 10-member committee that comprises secretaries from several prominent departments like the Ministry of Home Affairs, Legal Affairs, Ministry of Electronics and information technology etc along with the CEO of MyGov and Chairperson of Press Council of India. This committee was formed to bring certain rules and regulations for online platforms after researching some of the best International regulatory mechanism existing in this field.

Again in 2019, the Supreme court of India raised concerns related to online platforms and asked to bring some rules or form an association/board regarding the same. And finally, in the last week of February 2021, both Ministry of Electronics and Information Technology and the Ministry of Information and Broadcasting together released the notification for the new guidelines for digital media and OTT platforms- The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021. The guidelines have been framed in the exercise of powers given to the government under section 87 of the IT Act, 2000. These new rules will replace the Information Technology (Intermediaries Guidelines) Rules, 2011. The new guidelines will apply to the social media giants, intermediaries and OTT platforms. But before looking at the new rules, let us look at the already existing laws and rules related to digital media.

CURRENT RULES AND REGULATIONS RELATED TO DIGITAL PLATFORM

Under the Information and Technology Act, 2000, Section-43A provides “compensation for failure to protect data by the corporate bodies”[1]. And other Section 66A and 67B prescribe “imprisonment and fine for punishment for publishing or transmitting of material depicting children in the sexually explicit act and for any information that is grossly offensive and threatening through any computer resource that causes irritation, inconvenience, dangers and obstructions, or threat to anyone”[2]. Other than these acts “Section 69 has granted the power to impose reasonable restrictions on this right and intercept, decrypt or monitor Internet traffic or electronic data whenever there is a threat to national security, national integrity, the security of the state, and friendly relations with other countries, or in the interest of public order and decency, or to prevent incitement to the commission of an offence”[3]. And lastly, Section 72 and 72A prescribe “punishment for disclosure of information in breach of lawful contract along with Penalty for breach of confidentiality and privacy of person”[4]. Hence, after observing these sections, we can say that these rules basically act as a deterrent because of fine and imprisonment added under these provisions but can only take place when a complaint is registered on an individual basis.

And before releasing the new guidelines of 2021, online content did not fall under the purview of the Cinematography Act, 1952. Whereas OTT platforms had a pact of self-regulatory mechanism with the Internet & Mobile Association of India (IAMAI). The online media houses also neither fall under the ambit of the Press Council of India nor the Cable Television Network (Rules), 1994-95.

Hence, the new rules were brought to regulate all the digital platforms to empower “the ordinary users of digital platforms to seek redressal for their grievances and command accountability in case of infringement of their rights”[5].

The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021.

The rules are divided into broadly 3 parts-: First part contains all the definitions. Second set rules and regulations for intermediaries and provide a proper framework for redressal Mechanism. And the third part provides a detailed account of the “Code of Ethics” and “procedure & Safeguards concerning digital media”. Under this part, the government has given a detailed account of the Grievance Redressal Mechanism and prescribed a three-level of self-regulatory mechanism for OTT platforms.

Firstly, let us discuss the rules for Intermediaries. As the word suggest, intermediary means “companies or organizations which bring together or facilitate information between third parties on the internet”[6]. According to the Act, intermediary companies must follow all the rules. They must adhere to the rules and set up a Grievance Redressal Mechanism as prescribed. Here the act has made the intermediaries accountable as well as responsible to ensure the safety and dignity of online users especially women users. Under this rule, these companies must take down any inappropriate or obscene content posted online within 24 hours after accepting the complaint. Along with this, these intermediaries are also now bound to remove the Unlawful Content upon receiving any orders from the court or the government within 36 hours, which the government or court consider anti-national and hurt the sentiments of the nation.

These were some basic rules laid down for every single digital platform. Now the next, there are some additional sets of rules for Significant Social Media Intermediary. These intermediaries need to set up a three-tier redressal mechanism. Firstly, they shall appoint a CHIEF COMPLIANCE OFFICER – “who shall be responsible for ensuring compliance with the Act and Rules”. Second-tier will be held by a NODAL CONTACT PERSON who will coordinate and deal with the Legal departments and agencies. And lastly, a RESIDENT GRIEVANCE OFFICER, who shall be performing all the work given under the Act and will receive and resolve all the complaints within 15 days after accepting it.

Intermediaries now have to publish a monthly report providing detailed information upon the actions taken by the company on the complaints that have been filed, as well as the specifics of contents that the prominent social media intermediary has efficiently and effectively deleted.

The other major change brought by the government is that the “identification of the first originator of the message or information”. The government has asked the intermediaries to disclose the name of the users whom the government finds, has created content that is anti-national and may spread violence. But as per the current policies of some of the big giant on the social media platforms like WhatsApp, has the function of end-to-end encryption that provides privacy to the users in a way that no third person can get access of the chats and messages. Even WhatsApp cannot see or get access to the content originator. Therefore, this rule certainly can create contention between the government and giant tech companies.

Now, let’s understand the rules or the code of ethics laid down for the online news, digital media and OTT platform.

 According to the new rules, the act has prescribed the OTT platforms to classify their content into “five age-based categories” (Universal, U/A 7+, U/A 13+, U/A 16+ and Adult/18+). Along with the age-based categorisation, the platforms must also enable the parental lock feature and an age verification mechanism for 18+ content.

Regarding the online news channels, the publishers of this news now have to register themselves under the norms of “Journalistic Conduct of the Press Council of India and the Programme Code under the Cable Television Networks Regulation Act”.

There is also another structure of three levels of self-regulatory grievance redressal mechanism given under the Act for OTT platform and Digital News. On the first level, the grievance work will be held by the publishers who will appoint a GRIEVANCE REDRESSAL OFFICER who will be accountable to resolve the complaint within 15 days after acknowledging the complaint. Then by a self-regulating body on the second level, there can be more than one self-regulating body and that would be headed by a retired judge of Supreme Court/High Court or any other eminent person. The body must not comprise of more than six members. This body must be registered with the Ministry of Information and Broadcasting. And lastly will be held by an Oversight Mechanism formulated and controlled by the Government (Ministry of Information and Broadcasting). “It shall publish a charter for self-regulating bodies, including Codes of Practices. It shall establish on Inter-Departmental Committee for hearing grievances”[7].

Therefore, these were all the rules and regulations introduced by the government for the digital and OTT platforms. The government has also mentioned that if any of the company or intermediaries failed to comply with any of the rules laid under the Act then they will not get the benefit of Section 79 of IT Act, 2000 and legal actions can be taken against them.

Now after understanding the act, let us look at the advantages and disadvantages of this Act.

ADVANTAGES

In India, where there are millions of active users in the digital space, even having certain provisions for users given under the IT Act, 2000, still lacks a proper legal framework for Data Protection. And this void in the cyber legal system leads to many crimes on social media platforms that have the intensity and capability to incite violence in society.

Hence, as per the current need of the time, these rules will act as temporary law for these platforms and to regulate them. And the following are the prominent advantages of this act-:

  • Filtered / Categorised Content

The introduction of this new act will filter the inappropriate content and fake news and also will help to identify the same so that they can be taken down from the online platforms and make the digital space a safer place for everyone.

  • Age Classification of online content

This is the biggest step that has been taken under this act that will act as an indicator for the users and will certainly help them to classify their content. It will also prevent the children from watching content that is inappropriate for them.

  • Accountability and Redressal Mechanism

As per the new rules, now even intermediaries will also be held accountable for the content posted on their platforms. And by structuring a proper Redressal Mechanism, empowers users to file a complaint and seek grievances from the intermediaries.

DISADVANTAGES

These rules provided a wide range of effective and practical solutions to regulate online platforms. But several legal experts, academicians and other citizens also have raised issues regarding this Act. Following are some of the concerns related to the Act-:

  • Flawed Consultations

The legal experts raised the issue of insufficient deliberation held before framing these rules as there was almost no participation of experts from the field of digital platforms regarding the same. And when the draft was presented in 2018 by the Ministry of Electronics & Information Technology before the public and invited comments on the same, only 181 comments were received by the ministry. They argue that no notification or information was provided or broadcasted by the ministry upon the presented draft and that’s why there were only a few comments and reviews were received. Therefore, this act only represents the idea of the government and not of the public.

  • Curb on the Freedom of Expression

This act empowers the government to order the intermediaries to remove or take down any post or content that the government think is inappropriate and can hinder the peace and security of the nation. This provision may hinder and limits the freedom of expression of the users. As it is upon the discretion of the government that which content, they seem fits the criteria of the inappropriate post. This provision may also restrict the free flow of information on social media platforms.

  • Privacy Concerns

Right to Privacy now comes under the ambit of Article 21 that provides the Right to Life to all. But as per a certain rule provided under the act (Identification of the content originator), the concerns related to privacy can be again raised. Because there is a fair chance that this provision can also be used for unfair acts. And can cause users some major problems.

CONCLUSION

Hence, these new rules brought both relief and concerns at the same time. As the regulation has brought a clear picture on most of the issues but also raise concerns related to the basic rights of the users such as the right to express opinion and privacy. It would be very informative to see how the government will respond to these issues.

BIBLIOGRAPHY

  1. https://indianexpress.com/article/technology/tech-news-technology/govt-frames-new-rules-to-hold-social-media-ott-accountable-for-content-7205063/
  2. https://theprint.in/opinion/the-meaning-of-govts-new-it-rules-for-ott-digital-media-the-serious-concerns-they-raise/614271/
  3. https://theprint.in/judiciary/new-rules-for-ott-platforms-ineffective-to-control-screening-of-content-observes-sc/616309/
  4. https://timesofindia.indiatimes.com/business/india-business/govts-new-rules-for-social-media-ott-platforms-give-it-power-to-take-down-content/articleshow/81211165.cms
  5. https://www.thehindu.com/news/national/sc-says-new-rules-to-regulate-ott-platforms-lack-teeth/article33995501.ece
  6. https://www.financialexpress.com/opinion/new-rules-for-ott-platforms-regulation-or-restriction/2207205/
  7. https://www.businessinsider.in/tech/news/indias-new-rules-for-ott-platforms-could-lead-an-increase-in-content-related-disputes/articleshow/81306652.cms

[1] The Information Technology Act, 2000 (Act 21 of 2000), s. 43A

[2] The Information Technology Act, 2000 (Act 21 of 2000), s. 66A, 67B.

[3] The Information Technology Act, 2000 (Act 21 of 2000), s. 69

[4] The Information Technology Act, 2000 (Act 21 of 2000), s. 72, 72A.

[5] The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021.

[6] Advent of Online Intermediaries & Their Under Regulation the Indian Law, Mondaq, Advent Of Online Intermediaries & Their Under Regulation The Indian Law – Media, https://www.mondaq.com/india/it-and-internet/928072/advent-of-online-intermediaries-their-under-regulation-the-indian-law#:~:text=According%20to%20the%20Organization%20for%20Economic%20Cooperation%20and,facilitate%20transactions%20between%20third%20parties%20on%20the%20internet.Telecoms, IT, Entertainment – India (mondaq.com), (last visited March 11, 2021).

[7] New rules for OTT platforms ineffective to control screening of content, observe SC, India, available at: https://theprint.in/judiciary/new-rules-for-ott-platforms-ineffective-to-control-screening-of-content-observes-sc/616309/ (last visited March 10, 2021).

Author: SANSKRITI, DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY, VISAKHAPATNAM

Editor: Kanishka VaishSenior Editor, LexLife India.

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