Research Team
Project Lead: Raunak Chaturvedi, Research Associate
Project Intern: Surbhi Tyagi, Research Intern and Abhilasha Pawar, Research Intern

UNDER THE SUPERVISON OF EXECUTIVE AND ADVISORY BOARD

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Abstract-

This research project is going to cover an in-depth analysis of the new promulgated I.T. Rules, 2021. We shall first have a small introduction of the topic prior moving on to the various highlights of the policy. Then, we shall speculate upon the various probable reasons, as to why the Government might have implemented this policy in the first place. Henceforth, we shall delve into comparing our policy, with some of the existing ones on similar lines as ours, in other nations. Then, we shall understand the probable implementation problems concerning this policy, flying off later to understand the various legal lacunas about the same (if any). At last we shall extrapolate the impact upon the I.T. sector in India after perusing  the various pros and cons about the same.

Introduction-

The recent promulgation of the I.T. Rules have generated a wave of dissatisfaction, contempt for the Government, fear of the loss of one’s freedom and agitation for the excessive regulations. The Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, 2021, has been recently brought into force to judiciously regulate the social media content available. We may see this as an attempt of the ruling Government to  turn India into the Super State of Oceania, as in George Orwell’s celebrated novel 1984, where every piece of information was manipulated, or as an attempt to curb down fake news, Contempt of Court, anarchy, etc. Let us have a detailed look into this policy-

Highlights of the Policy-

The Ministry of Information and Broadcast has recently notified the Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules 2021. The notification has brought in detailed guidelines for digital content on both digital media and Over-the-Top (O.T.T.) platforms while giving overriding powers to the government to step in. Unveiled at a joint press conference by Information Technology Minister Ravi Shankar Prasad and Information and Broadcasting Minister Prakash Javadekar, the guidelines came as an important tool for the Centre to regulate social media, digital streaming sites and online news agencies. As a ‘soft-touch oversight mechanism,’ the guidelines have tweaked protection nets available to social media and O.T.T. companies, and have expanded their compliance obligations. Though, The Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules 2021 has not been introduced through a new law but is a part of the existing IT Act and serves as a self-regulatory mechanism for intermediary platforms, and social media intermediaries, as well as for digital media and over the top (O.T.T.) content players. The centre has created an essential distinction between a significant social media intermediary and a regular social media intermediary and tentatively digital players with more than 50 lakh users will be considered as significant social media intermediary.

The new rules require O.T.T. platforms to set up a robust three-tier grievance redressal mechanism including Chief Compliance Officer who shall be responsible for ensuring compliance with the Act and Rules, Nodal Contact Person for 24×7 coordination with law enforcement agencies, and Resident Grievance Officer who shall perform the functions mentioned under Grievance Redressal Mechanism. The code of ethics introduced under the rules set out guidelines for classification of content based on viewer’s age, themes, content, tone and impact, and target audience; and requires O.T.T. platforms to give due consideration to sovereignty, security, friendly relations of India, etc. The centre has also notified the platforms to publish a monthly compliance report.  In the recent years, the poison of fake news and inflammatory messages have threatened to tear the fabric of society. In this context, the Government has also framed rules making it mandatory for platforms such as WhatsApp to aid in identifying the ‘originator’ of ‘unlawful’ messages and the likes of Twitter, Facebook and YouTube to take down such messages within a specific time-frame.

For the news on the online media, the rules notify publishers to observe the Norms of Journalistic Conduct of the Press Council of India and the Programme Code under the Cable Television Networks Regulation Act. The Government has also called for a three-level grievance redressal mechanism consisting of self-regulation by the publishers; self-regulation by the self-regulating bodies of the publishers and an oversight mechanism. Under the rules, the Ministry of Information and Broadcasting shall also formulate an oversight mechanism, publish a charter for self-regulating bodies, including Codes of Practices and establish an Inter-Departmental Committee for hearing grievances. The significant social media intermediaries are also required to develop and deploy technology-based measures and automated tools to proactively identify information that depicts any act or simulation in any form depicting rape, child sexual abuse or conduct. Significant Social Media Intermediaries must also allow their users to ‘voluntarily’ verify their accounts, using any appropriate mechanism, including the active Indian mobile number of the user.

Probable Reasons to Formulate the Policy-

The O.T.T. has provided us with a variety of content that exceeds ordinary broadcasting and Information media, and draws attention to questionable issues.

It was also seen that the unrestricted sexual content, online child abuse, racial & gender discrimination, objectifying women, memes, videos, posts and tweets, has given rise to political unrest, seditious feelings, targeted the sovereignty, integrity and security of the states by inciting Violence, Xenophobia, Hate Speech or disturbs the maintenance of Public Order. Due to censorship on Films, Television and Press, the O.T.T. platform have the advantage of making films, web series and documentaries based on Political, Economic, Social and Sensitive Issues- E.g. Tandav, Delhi Crime, Mirzapur etc.

Since O.T.T. platforms are regulated by the Internet and Mobile Association of India (I.M.A.I.), having its own ‘Self-Regulatory Code’ including Age Clarification, Content Description, Parental Control and a Grievance Redressal System, making it easier for viewers to make right viewing choice for themselves and families. Even so, people had been complaining that there is too much sexual content, violence and use of foul language in web series and films made by the O.T.T. platforms.

E.g: (1) A case has been registered against the makers of the web series ‘Mirzapur’ and its respective OTT platform ‘Amazon Prime Video’ for hurting the religious sentiments of the viewers. The series has used abusive language and shown illicit relationship trampling the reputation of ‘Mirzapur’ and Uttar Pradesh.

E.g. (2) Another case, Uttar Pradesh Police has registered a case against the producers and makers of the web series ‘Tandav’ for promoting caste clash, hurting the religious sentiments of Hindus by depicting Hindu deities in a bad light, dishonouring lower caste people, spreading communal hatred and portraying the character of the Prime Minister disrespectfully.

“A MAN DO, WHAT HE SEE.” When a person comes across any sexual content or any unrestricted content for a matter of fact, the person starts expecting such thing in real life; he/she starts imagining themselves in that place or character. They think if it looks this good, it has to be this good in real life. Most of the web series, films and documentaries have violence, use of foul language, sexual content and most of them are women-centric at times.

About 90% of children and adolescents aged 5-17 (47 Million) uses computer and about 59% (31 Million) use the Internet. Most teenagers are active on social networking Sites and O.T.T. platforms which makes such content available to them and it might not have a positive impact on them, addiction to such content works the same as drug, smoking and alcohol addiction. But the point here is whether is it necessary to show such explicit content among the masses for the sake of originality?

There are so many films and web series which have done fine in the Films and Television industry without the use of any explicit content, use of violence and abusive language.

In my view, people should talk about these things and educate themselves with the help of these O.T.T. platforms but when you put such explicit content, it should come with some sense of responsibility. Not everybody has the same mental capacity to understand such things neutrally. It should come with some precautions and preventions which is required because even Freedom of Speech and Expression comes with restrictions.

This policy is only necessary for safeguarding the peace, harmony, and punishing the offender who threatens the unity, integrity, defence and sovereignty of the state or incites people to commit offence related to rape, online child abuse, defamation, racial and gender discrimination.

Countries Having Similar Regulations-

Although highly contentious, the new regulatory mechanism of the IT Ministry is not exclusive to India and similar frameworks of oversight exist in various other countries as well to monitor and control the online world.

One such country is Germany where the NetzDG law of 2018 applies to companies with more than two million registered users in the country and require them to set up procedures to review complaints about content they were hosting, remove anything illegal within 24 hours and publish updates every six months about how they were doing.  Following the live-streaming of the New Zealand shootings on Facebook, Australia passed the Sharing of Abhorrent Violent Material Act in 2019 which introduced criminal penalties for social media companies, possible jail sentences for tech executives for up to three years and financial penalties worth up to 10% of a company’s global turnover. A similar law in Russia allows social media operators to save the data of Russians on servers and give the regulators the power to switch off connections to the worldwide web in case of an emergency. China, which is one of the biggest watch-dogs of online media, has laws in place to monitor social media platforms and screen messages that are deemed to be politically sensitive. In the light of increasing terrorism, the European Union has also imposed on social networks to take responsibility for the content on their platforms besides wanting tighter data-handling practices. Vietnam regulates its social networks by giving the powers to the Interior Ministry to monitor contents, including e-mail, flowing over the Internet and hold internet users legally responsible for any information they provide or receive. The United Arab Emirates has a law under which internet access licenses can only be issued through the police, instead of the telecommunication regulator because the police monitor data coming into the country. One of the first countries to implement Internet-specific censorship laws, South Korea in 1995, passed the Electronic Communication Business Law, which established the Information & Communication Ethics Office and gave it broad powers to censor any material which encroaches on public morals and harms national sovereignty or youths’ character, emotions and the sense of value.

Probable Implementation Problems-

But on the counterpart, these new policies will make the whole O.T.T. Industry go down. To find the information about the first originator, the social networking sites will have to stop the end-to-end encryption policy which will ultimately invade the privacy of the people. The restrictions on the O.T.T. platform will damper the creativeness of the artists and which will ultimately hamper the Freedom of Speech and Expression. People who are against this policy states that it is a tool of government to control those who criticise the government or are against the public order. There are so many ways to handle these nuisances without censoring such contents, if someone is genuinely hurt by such films or web series, they can file a case against the makers of the web series and film.

E.g. Criminal Investigation can be taken place.

Legal Aspects concerning the Policy-

When we are talking about the various legal aspects with regards to the Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, 2021, we can’t limit our research to a particular aspect or summarise the same. For a well-elaborated detailed analysis, we shall apply a broad thematic approach to the same. Let us then have a look at the various legal effects of the policy, following a thematic approach-

Section 4- Section 4 of the Rules creates a very interesting situation, not only in terms of better legal awareness of the contractual rights of the customers but also aims at reducing significant I.T. related offences, such as defamation, child pornography, obscenity, nudity, etc. The main aim of this Section is twofold- to make the user is more aware of the various rights and duties that he has concerning the intermediaries and also to ensure that significant cyber offences supra are curbed. The Section empowers the intermediaries to act as a Judge and to decide what complies with the rules or not. They have been provided with so much power {Sub-section 1(c)}, that they can either remove the inconsistent content or block the account or even do both. The next clause says that in case an intermediary has been ordered by a Court of competent jurisdiction or has been provided reasonable information by any Government or its agency about any offensive information as already mentioned earlier, then it shall remove the same from publication or transmission and is supposed to preserve it (clause g) for a time period up to 180 days for investigating purposes.

Clause (e) however specifies that temporary information of the sort which is stored due to purely mechanical reasons doesn’t amount to any activity as envisaged in the preceding clause.

Chapters 2, 3 and 4- Chapters 2, 3 and 4 are very important in this regard, as they uphold the federal values of India. They essentially establish a tripartite mechanism to control the content being provided upon the social media platforms and also address the grievances which are provided for the same. These things truly uphold the federal principles of the nation and will prove to be quite effective, as there are multiple levels of scrutiny.

Section 17- This Section is quite pertinent to be cited, as the same speaks about the maintenance of the records of how the grievances are being looked into, what were the grievances, what was the content that was objected about, etc. The records are to be maintained at the Grievance Portal, as specified in the Rules.

Code of Ethics- The Code of Ethics, which is included as an appendix, clearly lays down the provisions about how the content is to be classified. This would in turn ensure better segregation of what the people are viewing and help in better socio-legal development, particularly of children.

A reliable age verification mechanism is also to be inserted, thus it shall prevent underage people from viewing restricted content, thus prevent in the development of criminal psychology at early stages.

If we are to talk about the Fundamental Rights, then people may say that this Policy may infringe the Right to Freedom of Speech and Expression under Article 19(1)(a) of the Constitution of India and, the Right to Privacy, as recognised under Article 21 in Justice K.S. Puttaswamy (Retd.) vs Union of India. However, it has to be mentioned that the content which is being restricted or removed should be falling under the categories as mentioned in Section 4 of the Rules. However, the major question that arises is that whether these agencies determining the content to be objectionable or not, are devoid of governmental influences or not.

Another question to be answered is concerning the Right to Privacy. It must be mentioned that Fundamental Rights are not absolute and are subject to reasonable restrictions. Hence, we need to keep in mind that the restrictions imposed are to maintain the sovereignty and integrity of the nation, hence not in violation of the Right to Privacy. Similarly, Article 19(1)(a) is not being violated, as the Constitution empowers the government to impose reasonable restrictions on actions relating to the subjects mentioned in Section 4.

Impact on the I.T. Sector-

One of the significant impacts that this policy is going to have on the I.T. sector is that it shall directly link all the I.T. companies with the government. This is something alarming because then the government shall influence the I.T. companies to modify the content as per their whim and caprice and wreak havoc. However, the I.T. companies will also be extremely vigilant about the kind of content which is being posted now. Infamous cases such as the ‘Bois Locker Room’ case are booming examples of the lack of vigilance over social media platforms, which in turn cause people to commit suicide. Thus, this shall be managed in a better way, hopefully.

The other major impact would be the organized way of redressing a grievance. Earlier, it was seen that the grievance was not addressed properly. However, now the same has been eliminated, as not only there are three levels of redressal, but also a record of the same has to be maintained properly over the Grievance Portal.

This policy may cause the industry to become biased towards the ruling Government because the direct vigilance will cause them to be extremely swayed towards being in the good books of the Ministry.

Pros and Cons-

Pros-

  1. Decrease in I.T. related crimes.
  2. Better grievance redressing mechanism.
  3. Better restriction towards objectionable contents.
  4. Proper maintenance of the steps taken for redressing the grievance.
  5. O.T.T. Platforms and other Social Networking Sites will come under the three-tier regulatory system.
  6. First Originator will be deducted.
  7. Media freedom will be available, but with reasonable restrictions.
  8. Age Restricted Content. 5 Different aged based categories.
  9. Parental Lock.
  10. It will include a ‘Code of Ethics’ which will safeguard the Digital Media.
  1. Despite the O.T.T. platforms viewing the new rules as a roadblock, the Ministry holds that the aim is to curtail problematic content and empower viewers to make more informed choices.
  2. The Government has insisted that the new rules level the playing field, and regulate online content in the same way as traditional newspapers, television and film.
  3. The Government claims that the rules will hold the platforms more accountable and responsible for the kind and nature of the content being steamed.
  4. The rules require big social media companies to take down unlawful content within a specific time-frame of being served either a court order or notice by an appropriate Government agency, thus promoting lawfulness in the online realm.

Cons-

The new rules have provoked a huge backlash among the world of tech and media. The opponents claim that the rules place unprecedented barriers on every form of digital content, from online news to social media and films and television on streaming platforms. Additionally, critics have challenged the rules in various petitions to the High Courts on the grounds of them being anti-democratic, unconstitutional as they have far-reaching consequences on online privacy, freedom of speech and expression, and access to information. The following are some of the contentions regarding the new rules.

  1. Biasness of the I.T. sector towards ruling Government.
  2. Too stringent control, due to the direct influence of the ruling Government.
  3. Hampers the Freedom of Speech and Expression by restricting the creativeness of the artists.
  4. Invasion of privacy due to the breach of end-to-end encryption.
  5. It will destroy the O.T.T. content the way it happened to films and television.
  6. It will lose the sense of originality.
  1. The news rules threaten to make India’s digital realm one of the most heavily regulated of any major democracy.
  2. It is feared that the rules will burden many online intermediaries and start-ups as they will require an expensive filtering infrastructure and an army of lawyers.
  3. The rules give the government a good deal of leverage over online news publishers and intermediaries.
  4. With mainstream media largely under the control of the ruling government, the introduction of these rules is seen as an attempt of the government to crack down on dissent which is usually found on online media platforms and streaming services.
  5. Critics claim that under the garb of self-regulation these rules promote state censorship as the Government has the right to decide which content is ‘objectionable’ and ‘problematic’. In the last few months of the Farmer’s Protest, the government has tried to control the dissemination of pro-framers information by regularly asking Twitter to block thousands of accounts and with the new rules, the government is seeking to strengthen its oversight and regulation.
  6. The grievance officers for intermediaries other than significant social media intermediaries are not required to furnish reasons for the decision taken regarding complaints received by them. They don’t have to furnish reasons either to the complainant or even to the user whose content may have been removed.
  7. The rules specifying messaging sites to disclose senders of objectionable messages threaten to dismantle the existing protocols for the deployment of end-to-end encryption. The government in certain cases may also ask for the contents of the messages which violate the privacy of the internet users.

Conclusion-

Thus, we had a thorough look into the various facets of these rules. We looked into its highlights, legal aspects, implementation problems, compared it with similar policies around the globe and had a thorough analysis of its pros and cons. In some aspects, this policy is going to help the country maintain order. However, about the other side of the coin, we shall humbly leave it upon the imagination of the reader to speculate. We have merely provided a guideline to aid the same.

References-

  1. Agarwal, S. (2021, March 1). India’s new social media rules are seen echoing globally. The Economic Times. https://economictimes.indiatimes.com/tech/technology/indias-new-social-media-rules-seen-echoing-globally/articleshow/81264441.cms
  • Information Technology (Guidelines for Intermediaries and Digital Ethics Code) Rules, 2021.
  • Sweta Kaushal, “Indian Government Introduces New Rules for OTT—Here’s What It Means for Filmmakers”, Forbes, Feb. 26 2021, available at https://www.forbes.com/sites/swetakaushal/2021/02/26/indian-government-introduces-new-rules-for-ott-what-it-means-for-filmmakers/?sh=476621fc609d (01 April 2021).
  • Nagoriastha, “Censorship of OTT Platforms: A Boon or Bane”, Legal Service India E-Journal, available at http://www.legalserviceindia.com/legal/article-3418-censorship-of-ott-platforms-a-boon-or-bane.html (01 April 2021).
  • Ahmad Adil, “Case registered against makers of Indian web series”, Anadolu Agency, Jan. 18 2021, available at https://www.aa.com.tr/en/asia-pacific/case-registered-against-makers-of-indian-web-series/2113726(01 April 2021).
  • “Supreme Court issues notices to Mirzapur makers over PIL against show”, India Today, Jan. 21 2021, available at https://www.indiatoday.in/binge-watch/story/supreme-court-issues-notices-to-mirzapur-makers-over-pil-against-show-1761301-2021-01-21 (01 April 2021).

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