For the first time, the union government, under the ambit of the IT (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021, has brought in detailed guidelines for digital content on both digital media and Over The Top (OTT) platforms.
In this issue of BI, we provide you with an overview of its contents, the “safeguards” it seeks to establish, how they affect your internet usage experience.
Background: Social Media usage in India
- The Digital India programme has now become a movement that is empowering common Indians with the power of technology.
- The extensive spread of mobile phones, the Internet etc. has also enabled many social media platforms to expand their footprints in India.
- Some portals, which publish analysis about social media platforms and which have not been disputed, have reported the following numbers as the user base of major social media platforms in India:
- WhatsApp users: 53 Crore
- YouTube users: 44.8 Crore
- Facebook users: 41 Crore
- Instagram users: 21 Crore
- Twitter users: 1.75 Crore
What are the New Rules?
[A] Guidelines Related to Social Media
Due Diligence To Be Followed By Intermediaries:
- The Rules prescribe due diligence that must be followed by intermediaries, including social media intermediaries.
- In case, due diligence is not followed by the intermediary, safe harbour provisions will not apply to them.
Grievance Redressal Mechanism:
- The Rules seek to empower the users by mandating the intermediaries, including social media intermediaries, to establish a grievance redressal mechanism for receiving resolving complaints from the users or victims.
Ensuring Online Safety and Dignity of Users, Especially Women Users:
- Intermediaries shall remove or disable access within 24 hours of receipt of complaints of contents that erodes individual privacy and dignity.
Enabling Identity of the Originator:
- Significant social media intermediaries providing services primarily in the nature of messaging shall enable identification of the first originator of the information.
- Required only for the purposes of prevention, detection, investigation, prosecution or punishment of an offence related to sovereignty and integrity of India, the security of the State, friendly relations with foreign States, or public order.
Removal of Unlawful Information:
- An intermediary should not host or publish any information which is prohibited under any law in relation to the interest of the sovereignty and integrity of India, public order, friendly relations with foreign countries etc.
[B] Digital Media Ethics Code Relating to Digital Media and OTT Platforms
This Code of Ethics prescribes the guidelines to be followed by OTT platforms and online news and digital media entities.
Self-Classification of Content:
- The OTT platforms, called the publishers of online curated content in the rules, would self-classify the content into five age-based categories– U (Universal), U/A 7+, U/A 13+, U/A 16+, and A (Adult).
- Platforms would be required to implement parental locks for content classified as U/A 13+ or higher and reliable age verification mechanisms for content classified as “A”.
- The publisher of online curated content shall prominently display the classification rating specific to each content or programme together with a content descriptor.
Norms for news:
- Publishers of news on digital media would be required to observe Norms of Journalistic Conduct of the Press Council of India and the Programme Code under the Cable Television Networks Regulation Act.
Self-regulation by the Publisher:
- Publisher shall appoint a Grievance Redressal Officer based in India who shall be responsible for the redressal of grievances received by it.
- The officer shall take a decision on every grievance received it within 15 days.
- There may be one or more self-regulatory bodies of publishers. Such a body shall be headed by a retired judge of the Supreme Court, a High Court or independent eminent person and have not more than six members.
- Such a body will have to register with the Ministry of Information and Broadcasting.
- This body will oversee the adherence by the publisher to the Code of Ethics and address grievances that have not to be been resolved by the publisher within 15 days.
- Ministry of Information and Broadcasting shall formulate an oversight mechanism.
- It shall publish a charter for self-regulating bodies, including Codes of Practices.
- It shall establish an Inter-Departmental Committee for hearing grievances.
Why do OTT services need to be regulated?
First, an individual’s right to privacy may be endangered by OTT communication services too. Hence, there is a need for state intervention. Second, private entities may act as ‘big brothers’. This could also imply that market forces may not always act in the interests of consumers.
(1) Ambiguous definition of OTT/Social Media
- Earlier, there was no universal definition of what OTT communication services are.
- As a result, the difference between OTT communication and non-communication services becomes thin and blurred.
- The definition of the term “intermediaries” is broad enough to cover all social media / content sharing platforms as per the new rules.
(2) Issues with content
- The Supreme Court has observed vulgar and harmful content being streamed on over-the-top (OTT) platforms.
- It has observed content that deliberately and maliciously disrespects the nationalist, religious sentiments of our nation.
- There is no dearth of uncertified and sexually explicit content and pornography that is otherwise banned in India.
(3) Data Privacy
- When an individual is using any OTT for communication services, the data gets shared with the parent company.
- This data can be used by the parent company for commercial purposes without explicit consent of the user, thereby affecting the user’s privacy.
(4) Data Sovereignty
- The OTT service providers may store the personal information of the end-users in their data servers located abroad. This may lead to issues relating to data protection and national security.
- Provisions such as the free flow of cross-border data, prohibition on data localisation and source code disclosure intend to curb the policy space available to the government.
- Data of Indian users residing in servers outside India is a serious issue and can endanger the sovereignty and integrity of India.
(5) International Perspective
- The digital economy regulations including OTT services are evolving across the world.
- Countries like Singapore, UK have regulatory bodies to keep a check on the OTT platforms.
- In the UK, the OTT platforms face the same scrutiny as any public service broadcaster.
- Countries like Indonesia, Turkey and Saudi Arabia have strict regulations. They want total control in the hands of the Government. Many OTT platforms including Netflix has been blocked.
What about social media?
- The most often documented and observed crimes occurring on social networking sites include people making anonymous threats, bullying, harassing, and stalking others.
- Most of these types of crimes go unpunished and are therefore not treated very seriously.
- Defamation on Social media may be defined as representing someone by hacking their social media accounts and sending indecent or inappropriate messages.
(2) Hate Speech
- Hate speech is described as a speech of aggressive nature containing statements of inferiority and messages expressing prejudice against an individual or community based on certain features.
- These features may include ethnicity, religious affiliation, sexual orientation, caste, national origin, sex, race, gender, and severe disability or illness.
(3) Harassment and cyber stalking
- Online abuse, bullying, and harassment on social networking sites are synonymous with cyber-stalking. It usually includes the conduct of repeated harassment or threats done towards an individual.
- Cyberbullying and harassment can include threatening or harassing email messages, text messages, or uploading information online.
- It aims at a particular individual either through attempting to contact them directly or by distributing their private and sensitive information, to cause distress, fear, and anger.
(4) Privacy breach
- The privacy of an individual is a basic human right, whether it is on social media or in the physical world.
- A false claim about widespread child trafficking and harvesting of fake news widely through WhatsApp resulted in mob violence and more than three dozen deadly lynchings in 2017 and 2018.
- WhatsApp declined the government’s demand to disclose the source of the rumours, stating its pledge of anonymity and privacy towards its users done through end-to-end encryption provided by the application.
Advantages offered by these rules
- Effective checks and balances: These rules will ensure that social media platforms have to keep better checks and balances over their platforms. This will ensure the data is not shared unlawfully. This will ensure adherence to the rule of law.
- Enhanced accountability: The new IT rules enhance government regulation over social and digital media. This will enhance accountability and prevent arbitrary actions by digital platforms like the recent one by Twitter.
- Citizen empowerment: The new IT rules will lead to the empowerment of citizens. Since there is a mechanism for redressal and timely resolution of their grievances.
- Maintenance of public order: Disinformation (Fake and wrong information) of data can be controlled. Since there is proper regulatory mechanism, disinformation can be removed easily. This will reduce instances of fake news incited violence.
- India’s digital imprints: It will strengthen India’s position as a leader in digital policy and technological innovation. For example, China, with its larger digital population, has not been able to provide a fair and open local market for global companies in the digital space due to absence of proper IT Rules and Regulation.
Issues with the new rules
(1) No discussion with stakeholders
- Another similarity between the farm laws and the way the government has approached this process is its unwillingness to engage with the stakeholders that matter.
- The new regulation has come all of sudden in the absence of open and public discussion and without any parliamentary study and scrutiny.
(3) Concerns over the legal basis
- Questions have been raised about the very validity of the rules on technical grounds.
- The govt has chosen to pass these rules under the requirement to outline the due diligence that Internet intermediaries have to follow in order to be able to claim their qualified legal immunity under Section 79 of the IT Act.
- These rules at the outset appear unlawful even with respect to whether they could have been issued under the Information Technology Act in the manner chosen by the government.
(3) Using rule making power to issue primary legislation
- The ability to issue rules under a statute — i.e. to frame subordinate legislation — is by its nature a limited, constrained power.
- The government has made massive changes to the way the internet will work in India, but without having to take the matter to Parliament at all, by amending the rules under pre-existing sections of the law.
- Critics argue that, with the present Internet content and social media rules, the Union Government has done precisely that.
(4) Data privacy concerns left unaddressed
- In 2019, the government tabled a Personal Data Protection Bill in Parliament. It is yet to be turned into a law.
- The fact that, in 2021, the government is continuing to bring in new regulations regarding the digital space without yet having passed a privacy law reflects its governance priorities.
- With no privacy law insight and new government rules that undermine that fundamental right, citizens ought to be concerned about the way the state is observing all online activity.
- The Rules along with the Code of Ethics is the Government’s attempt in regulating the operations and content online. They seek to maintain a balance between self-regulation and government control.
- The intent of the rules appears to be to curtail problematic content, empower viewers to make more informed choices, and create a level playing field for various mediums.
- While this may be an essential step in streamlining the sector, which was until recently, unnoticed, and under-regulated, the efficacy in implementation of these Rules will need to be tested.
- OTT content creators and the platforms themselves will have their hands full with complaints which will largely be based on subjective matters.
- There is no way to objectively judge the efficacy of such rules/legislation since they evolve with time. We can only expect that the law will evolve from more practical learnings in the future.
- As the digital space and technology for the distribution of content evolve, the regulatory framework for the digital industry will also continue to evolve.
In order to ensure fine-tuning of any significant bottlenecks, implementation challenges, and prevent possible misuse of the regulations, policymakers and stakeholders should continue to engage with each other to put in place a regulatory framework that is effective and balanced.
- The public today is looking for content that brings out the truth of the society, deals with socio-political issues, provides us regional varieties and utmost importantly doesn’t hurt the sentiments of a single class of people.
- The OTT platforms in the Indian sub-continent according to various industry experts have given a rise in the creative freedom of content creators and opportunities to many.
- Looking at the present scenario, the need for an unbiased regulation is a must, and the new rules are a step in that direction.
- What some think are going to be regulations, others feel it as a censorship measure in the virtual world.