Both the intermediaries and OTT platforms should heave a sigh of relief that the rules may be less onerous than what may have been thought earlier
In terms of the OTT platforms, the focus on self-classification of content and censorship really follows a global trend.
By Sajai Singh
The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, framed in exercise of powers under section 87 (2) of the IT Act, 2000, supersede the earlier IT (Intermediary Guidelines) Rules 2011 and provide guidelines and a code of ethics for not just social media platforms, but also for digital media in general and OTT platforms. Both MeITY (Part- II of the rules) and ministry of information and broadcasting (Part-III relating to code of ethics and procedure and safeguards concerning digital media) have been provided an administrative role.
The rules don’t come as a surprise, as there has been much debate on regulating social media platforms and OTT platforms. The global might of social media platforms is propelling various countries to sit up and take a particular position based on their purported internal policy and domestic challenges. Canada, Australia, China and Iran have in various ways taken (some withdrawn) a strong stance against certain activities and facilities of such platforms. It does seem like 2021 will be remembered as the year of social media platforms. Oddly the pandemic in 2020 made these platforms really relevant to the common man and their governments the world over; and, now, it is these very platforms that seem to pose the most imminent threat to elected governments. While ironic, this is a reality that needs to be dealt with.
In India, the rules are aimed at controlling third-party generated content, which an intermediary has little control over, which may result in recruitment of terrorists, circulation of obscene content, spread of disharmony, financial frauds, incitement of violence, public order etc. They also address the vacuum of not having an EU style data protection law or a data protection authority.
Like Australia and Canada, the Indian government also touched upon news and current affairs publishing on these platforms, referring to the journalistic conduct of Press Council of India and the programme code under the Cable Television Network Act. Though thankfully, no fees for carrying news/current affairs content has been proposed.
While provisions of due diligence and internal grievance redressal mechanism expand on the previous intermediary rules, it is the disabling access of content within 24 hours of receipt of complaints that may put pressure on platforms. I find the distinction between social media intermediaries and significant social media intermediaries to be interesting and how the Government distinguishes the due diligence requirements of both.
Obviously, the significant social media intermediaries will be under a more severe scanner of the government. Those social media intermediaries who don’t have a significant presence in India will need to rethink their plans. There is a need for Indian residents to be appointed as a chief compliance officer, a 24×7 nodal contact person, and a grievance officer. An address in India for contact would need to be made public. End-to-end encryption (say of WhatsApp) may be put to the test with the requirement of identification of the first originator of information. Though a three-month time frame for compliance has been provided, I am sure it will be spent in active negotiations between the government and social media intermediaries.
It is good that the current protection of an intermediary to act based on receiving actual knowledge in the form of an order by a court or being notified by the appropriate govt or its agencies through authorised officer has been recognised.
In terms of the OTT platforms, the focus on self-classification of content and censorship really follows a global trend. While there may be a debate whether a Facebook would be considered a news intermediary, at least there is clarity on what rules would be followed. The classification of content follows what several OTT platforms already use—U (Universal), U/A 7+, U/A 13+, U/A 16+, and A (Adult). Parental locks, content descriptor and age verification mechanism will need to be set up.
In many ways, both the intermediaries and OTT platforms should heave a sigh of relief that the rules may be less onerous than what may have been thought earlier, especially the pre-censorship of content with filters doesn’t find its way in the rules.
The author is Partner, J Sagar Associates. Views are personal