India ranks 142nd out of 180 countries on The World Press Freedom Index 2020, dropping down by two places from the preceding year. In case of The Human Freedom Index 2020, a worldwide ranking of civil, economic and personal freedom, it is 111th out of 162 nations dropping down by a whopping 17 spots compared to the preceding year. These stats represent the position India holds in the global fraternity when it comes to freedom that the Indian Citizens possess and we clearly see the gradual decrease in the same. In the light of the recent developments, these numbers come to bite us right where we stand and make us rethink what our coming future holds for us.
The Ministry of Information and Broadcast (MIB) has in the past few years, seeing the growing popularity and usage of “Social Media” intermediaries and OTT Platforms, stressed on the overall free reign that this sector enjoys and held consultations with several stakeholders with the view to regulate the functioning of these enterprises. In this background, the MIB recently notified the Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules 2021 (Rules). Does this new change seem legitimate and reasonable or unwarranted and oppressing? Is it merely a simple initiative by the government to regulate sites to prevent and mitigate new arenas of criminal misconducts that come with this territory or to make sure that any voice against their own is stubbed? To decide whether or not it is a step in the right direction, we first need to know what it is.
To answer that question, these rules essentially attempt at regulating and introducing limited government participation in the information broadcasting industry, be it limiting the content circulation or decision making when grievances pop up. The rules do so in a twofold manner by enlisting provisions pertaining to social media intermediaries and Over the top (OTT) platforms separately.
Talking about the INTERMEDIARIES first, the act specifically defines a “SIGNIFICANT social media intermediary” as any person or site who or which on behalf of another person receives, stores or transmits that record or provides any service with respect to one with number of users above the prescribed government limit to that effect. To summarize the list of provisions, the major points to consider in this regard are:-
- Every intermediary will take due diligent steps to inform users about the prohibited information to upload or share
- On a notice from an appropriate authority or under the order of any competent court, the intermediary will, in not less than 36 hours, remove or disable access to the specified content.
The content removal should be in relation to the interest of the sovereignty and integrity of India; security of the State; friendly relations with foreign States; public order; decency or morality; etc. or any information which is prohibited under any law for the time being in force.
- Provisions strengthening the grievance redressal mechanism have been enlisted. The grievance officer of the intermediary appointed has to acknowledge any complain within 24 hrs and has to dispose of the same within 15 days.
Furthermore, in matters related to content exposing the private area of the complainant or any sexual content depicting the complainant, the intermediary has to take all reasonable steps to remove such content within 24 hrs.
- Significant social media intermediaries have to reveal the identity of the first originator of any specified information if ordered by any competent court or by an order under section 69 of the Information Technology Act, 2000.
While explaining this provision, the rules state that such order will not be passed where less intrusive methods are available and that only the identity and nothing else would have to be revealed.
- The users will be enabled to voluntarily verify their accounts through their mobile phone numbers if they wish to.
- If the intermediaries refuse to comply with the rules mentioned above, they stand to lose the immunity provided to them under section 79 of the IT Act, 2000 and they will liable for punishment under any law in force for the time being.
Coming on to the code for DIGITAL MEDIA generally including the OTT platforms, following provisions have been provided for:-
- The OTT platforms are required to set up a three-tier grievance redressal mechanism i.e.
Level I – Self-regulation by the publishers through a grievance officer;
Level II – Self-regulation by the self-regulating bodies of the publishers consisting of industry experts headed by a retired Supreme Court/ High Court judge /eminent personality in the relevant field;
Level III – Oversight mechanism by the Central Government i.e. an inter-department committee constituted by the MIB to hear appeals from level II or a direct complain to the committee.
- Code of ethics to be followed while classification of content has been provided for
- Content rating categories i.e. classification into U, U/A 7+, U/A 13+, U/A 16+ and A have been enlisted and the publishers shall classify all online curated content accordingly. Publishers also have to make sure that all content has visible and accessible explanation of “relevant content descriptors” attached to them so that viewers make an informed decision.
- The rules further state the I&B secretary can also decide to block public access to a specific content without giving the platform an opportunity of hearing, in case of an emergency.
Section 69A of the IT Act, 2000, allows the Centre to block public access to an intermediary “in the interest of sovereignty and integrity of India, defence of India, security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of any cognizable offence relating to above”.
Now that we know in brief what these rules bring to the table, it becomes important to think about the consequences these rules will produce and the effects that all stakeholders will bear. The direct stakeholders in this dynamic change are the intermediaries, the OTT platforms and the users.
Recently, twitter received orders from the government to block around 1000 twitter accounts on grounds of incitement of violence amidst the farmers’ protests. After temporarily blocking some accounts, permanently some others and receiving various threats from the government, twitter has declared that it will not block accounts which belong to activists, media houses, journalists and politicians in order to protect their “freedom of speech and expression”.
This however isn’t the first instance and most definitely won’t be the last. These new rules while do draw a mirage of reasonable and proportionate exercise of government power, it still cannot be disregarded that the government now holds the potential to stop circulation of every such content that stands to oppose the sovereign. The freedom of speech and expression of the users, or even the right to privacy for that matter becomes obsolete. Intermediaries on the other hand stand to lose their immunity in case they wish to protect the rights of their users, making them vulnerable to stringent criminal liability.
OTT platforms have on the other side of the spectrum, undergone a major development boom in the wake of the pandemic and growing consumer awareness. The new rules which force the OTT platforms to host content according to the social construct of a nation that is a culmination of diverse societies, might act as a speed breaker in the growth of the said platforms. The restrictive content might lead to a surge in content piracy further leading to loss for the platforms. The problem of subjective and diverse sensibilities might make it difficult for the platforms to satisfy anyone without generating a multitude of complaints. Having previously objected to an independent appellate body to hear cases related to streaming content, they are now forced to submit to the authority of the level II and III of the three-tier system.
These rules are yet to be developed further. What needs to be seen now is how the government chooses to implement these rules further. If taken in the right direction i.e. towards the welfare of the people, and if executed well, these rules can be used to combat various problems that require proficient combating in a land like ours. The power in the hands of the sovereign on the flip side of the coin has the potential to destroy the basic foundation of our sacred constitution and it is that potential coupled with former tendencies of our government, which creates waves of worry amongst the masses while we attempt at deducing what our future might look like.
This article has been written by Ishita, III year