22 Nov 2021 2:42 PM GMT
The Information technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 was released by the Indian Government to regulate the social media platforms, digital media platforms and the OTT platforms. With the new IT Rules the Government of India is trying to regulate the digital media sphere and the content that is shared in these platforms online. These IT...
The Information technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 was released by the Indian Government to regulate the social media platforms, digital media platforms and the OTT platforms. With the new IT Rules the Government of India is trying to regulate the digital media sphere and the content that is shared in these platforms online. These IT rules are formed under the IT Act 2000 and this has superseded the previous IT rules of 2011. But are the new IT rules being actual trying to regulate or is causing hindrance in the use of the digital Platforms? Under the garb of regulating for putting these platforms under larger accountability are they trying to control and restrict the platform as per their whims and fancies by putting a leash on the Big Tech Companies? More than 23 petitions were being heard by various high courts regarding this issue of the regulation of the online video streaming platform wherein the grievance included various religious sentiments which were affected through depiction of certain moral outraging videos and the depiction of sexuality. Although these FIRs were in context of specific film and shows its wide range impact is on the liberty of these content creators. government through a press release had expressed its view that that because of the widespread concern with respect to the issues relating to the digital contents both on digital media and the OTT Platforms various PIL had been filed before the high court and the Supreme court to regulate the content being broadcasted in these OTT Platforms which had led to the publishing of the Draft Information Technology( Intermediary Guidelines) Rules 2018 for public consultations and since this, the OTT Regulation and Code of Ethics for Digital Media along with Intermediary Guidelines 2021 was notified. Through this research paper we chalk down the history of these rules, the ongoing litigation as well as is possible challenges with respect to violation and undermining of the freedom of Speech and Expression and privacy for the Internet users in India and the unconstitutionality that it suffers from the same.
RESEARCH QUESTIONS OF LAW/FACTS
HISTORY OF OTT REGULATION AND INTERMEDIARY GUIDELINES RULES: A CONTROVERSIAL PAST
Before answering to the above delineated issues in form of research question, the author seeks to focus on the Controversial history of the OTT regulation. The Ministry of Information and Broadcasting (MIB) had passed an order in April 2018 to form a 10-member committee to "frame and suggest a regulatory framework for online media/news portals which includes digital broadcasting and entertainment/ infotainment sites & news as well as media aggregators". The committee therein was subsequently disbanded in July, 2018 and the task was handed over to a panel overseen by MEITY. Thereafter on 09.11.2020, the President of India had issued a notification under Article 77(3) of the Constitution, amending the Government of India (Allocation of Business) Rules, 1961 which thus granted MIB the power to regulate the online news platforms and 0TT platforms
Until now, the OTT platforms have remained away from the ambit of any regulations of Section 79 of the Information Technology Act, 2000(IT Act). Section 79 acts as a safe zone to intermediaries who hosts content and exempts them from the liability for actions if they adhere to the guidelines which is prescribed by the government. The guidelines that the Intermediaries are required to comply with are present under the Information Technology (Intermediary Guidelines) Rules 2011, however changes are being made to these guidelines since 2018. Initially they had denied of holding a private meeting between the government officials regarding the amendments being made to the guidelines for intermediary liability. The ministry of Electronica and Information Technology (MeiTY) subsequently announced a public consultation on the changes being made. The proposals were to make changes to the liability exemption which were granted to the online platform or the service providers under Section 79 of the IT Act. The platforms include an intermediary which is a service provider which transmits hosts and publishes the user content without exercising the editorial content like the traditional publishers. So, these Platforms include the ISP, the email provider, the social media Platform or any webservice which allows us to post and publish it, and thus these platforms help us in exercising our right of freedom of speech and thus hold a great power.
THE INFORMATION TECHNOLOGY (INTERMEDIARY GUIDELINE) RULES 2021
The information technology (Intermediary Guideline) Rules and the Code of Ethics and Procedure and Safeguards in Relation to Digital/Online Media (hereinafter "rules" as notified by the Central government under Section 87 of the Information Technology Act 2000. Following are the overview of the rules and major due diligence requirements to be observed by the intermediary and a significant social media intermediary which tends to create a burden on the authority in some way or contravenes with their freedom of speech and expression. The author through these certain provisions of IT Rules 2021 has tried to provide justification for the same.
1.Content Take down: Rule 3(1)(d)
After receiving court order or being notified by a government agency, intermediary is bound to remove that information which is prohibited by law or in relation to the interest of sovereignty and integrity of India, the security, relation with foreign state, public order decency or morality, contempt of court, defamation or incitement to an offence or information violating any law in force and such type of information has to be removed within a duration of 36 hours. It should be taken into consideration that though the rules have extended the time which was earlier 24 hours to now being 36 hours, it should be noted that this strict requirement of 36 hours would supress the right of the intermediary to fair recourse when there rights are being violated and when they are in disagreement with the government.
2.Grievance Redressal Mechanism: Rule 10
The publisher, within a period of 24 hours has to give the acknowledgement of the grievance to the complainant. The publisher then must address the grievance and convey the decision to the complainant within 15 days of registration of the grievance. If the grievance remains unaddressed after 15 days, the matter will escalate to the self-regulating body at level two of the three tier grievance redressal mechanism. The rules envisage a three tier regulatory framework for grievance redressal
(i)The first Level (Self-regulation by Publisher):- Every publisher must establish a grievance redressal mechanism and appoint a grievance officer and publish the name and contact details of this officer.
(ii) The second level (Creation of self-regulating body): The Rules provide for the creation of one or more self-regulating bodies consisting of publishers/industry experts which would be headed by a retired judge of the Supreme Court/High Court and registered with the MIB. The MIB will publish a charter for these self-regulating bodies including codes of practice. The publisher must become a member of any one of these self-regulating bodies and abide by the terms and conditions of such body. The self-regulating body can then address grievances that the publisher fails to resolve within a period of 15 days, hear appeals from the complainant and issue guidance or advisories to the publishers requiring them to issue apology, censor the content or include disclaimers or warning cards. In addition, the self-regulating body will also oversee and ensure that the publisher adheres to the Code of Ethics. If the publisher therein fails to comply with any guidance or advisory issued by the self-regulating body, then the latter can refer such grievance to the oversight mechanism set up by the government within a period of 15 days. The self-regulating body cannot on its own issue any kind of direction for the removal or modification of unlawful content - it can only refer such content to the Oversight Mechanism.
(iii) The third level (Oversight by the Government): The MIB has the power to establish an Inter-Departmental Committee for hearing and examining grievances. This Committee can only issue its recommendations to the MIB and cannot pass any direction or order against the publisher. MIB can also issue guidance, advisories, order and direction to the publishers for adherence with the Code of Practice.
At the hearing stage, after examining the grievance, the Committee can thus issue recommendations to the MIB requiring removal or modification of the content in the interest of sovereignty, integrity, defence, or in order to prevent cognizable offence. In case of recommendations which pertains to the removal or modification of content, the authorised officer appointed by the MIB (Authorised Officer) is required to place the Committee's recommendation before the MIB for its consideration, after which upon receiving approval from the MIB can issue directions to the publisher or the intermediary seeking removal or modification of the relevant content. The Rules provide that the orders and directions issued by the Authorised 0fficer can only be in respect of a specific piece of content and cannot require any entity to cease its operations.
In case of an emergency where no kind of delay is acceptable, the Authorised Officer will review the content and determine whether it contravenes the grounds relating to sovereignty and integrity, defence, security of the State, friendly relations with foreign States or public order or for prevention of incitement of any cognizable offence relating to the same as provided under Section 69A of the IT Act and can submit its recommendations to the MIB for removal of such content. If the MIB is satisfied, then it can issue an interim order under Section 69A of the Act for immediate blocking of this content without giving any opportunity of hearing.
Now, this 3 tier mechanism has many deficiencies firstly, being the power that is given to the MIB to decide upon what content is to be broadcasted and what is to be blocked and with respect to the news content as well, it will have negative important on the right of freedom of speech and expression as well there are high chances that it would be politically motivated which would set a dangerous precedent because the right of freedom of speech and expression would now be at the mercy of the government wherein it can even ban the new channels when it might put into light some actual wrong doings of the government which are actually the truth by government in the name of citing it as breach of national security laws might condemn the violation of the freedom of the media.
3.Due Diligence Requirements to be followed by Social Media Intermediary Appointment of Personnel- (i) Chief Compliance Officer Rule 4(a): Intermediary has to appoint a chief compliance officer who will be undertaking the responsibility of ensuring the compliance with the IT Act and IT Rules and shall be liable in failure of the same. The chief compliance officer has to be a key managerial Personnel or a senior employee of the company, that person has to be a resident of India. (ii) Appointment of a Nodal Contact Person, Rule 4(b): A social media intermediary is also required to appoint a nodal person who will be responsible for coordination with the law enforcement agencies and ensuring that the orders and requisitions that are sent to the company are complied with. The nodal contact person shall be an employee other than the person holding the position of the Chief Compliance officer. (iii) Appointment of Resident Grievance Officer: Rule 4(c) The grievance officer who shall be responsible for ensuring that the intermediary follows the due diligence requirements relating to grievance redressal mechanism Now, this mandatory requirement may create hurdle for those who does not have their offices in India and for those intermediaries who work at a small scale level and have financial constraints because this may create additional financial burden upon them.
4.Identification of the First Originator: Rule 5(2): This provision requires that a social medial intermediary to identify the "first originator" of the information and in order to acquire such information. Introducing this mandatory requirement would break the end-to-end encryption in a manner as it provides reliability security and privacy to the users. Now, introduction of this traceability requirement might have serious consequences because the original information can easily be changed and modified and, in that case, might lead to falsely framing an innocent person. We, live in times where encryption of data is even more important because now our personal data might get aggregated and analysed and thereby comprising the privacy of the communication. It would also pose a challenge before the court considering the fact the originator of the information might not be the actual originator of the information which would lead to chaos and false framing of charges. One of the provision to the rule states that if the first originator of the information is not based in India then the first originator of that information in India would be deemed as the originator of that information.
Dr. Manoj Prabhakaran had once emphasized on the long-term risks involved in introducing of traceability on encrypted platforms in one of cases om Antony Clement Rubin v. Union of India. In that, Dr Prabhakaran highlighted that enabling traceability was susceptible to the vice of falsification of the information of the originator and that the proposal to the way of traceability of first originator through decryption has limited use in addressing the problem of fake news in the long run
5.Automated Filtering: Rule 5(4): This rule requires that the social media intermediary must deploy technology-based measure such as automated tools or any other mechanism for identification of the information which depicts rape or child sexual abuse or such information that has been removed or the access to which has been disabled. The deficiency in this case is that these AI tools are not efficient because these tools are just in the process of developing and thus would not be efficient in identification of images and the video as a result of which it would err on the side of caution. It might also lead to increased and unnecessary censorship thus impacting the democratic rights of the citizen.
6.Compliance Reports: Rule 5(D): As per this rule the social media intermediary is required to publish the compliance report every month which will contain the details of the complaints received and the links and information removed through the automated tools. Although this move of publishing the compliance reports is a positive step which will thereby transparency, however this might create burden intermediaries so instead of one moth quarterly or bimonthly report can be published regard the same.
7.Publisher of News and Current Affairs: Rule 2(t) "an online paper, news portal, news aggregator, news agency and such other entity called by whatever name, which functionally similar to publishers of news and current affairs content but shall not include newspapers, replica e-papers of the newspaper and any individual or user who is not transmitting content in the course of systematic business, professional or commercial activity"
Again, this rule discriminates the e- newspapers and create arbitrariness by excluding the online newspapers in the definition clause because this would create vagueness as well as would allow the government to censor the media house at one stroke. It would create discrimination among the media house which has print system for their newspapers as they would be able to seek exemption from these rules and the media house which disseminate information through online sources would be alone under threat. This move would hence be an arbitrary move and therefore the purpose and the objective behind this discrimination has to be reviewed upon.
ARE THESE GUIDELINES A MISCHIEF IN REAL OR A BLESSING IN DISGUISE: ADDRESSING THROUGH THE RESEARCH QUESTIONS
The oversight mechanism at Level III of the self-regulatory structure by the Ministry of Information and Broadcasting who would constitute an Inter-departmental committee for addressing the grievances under Rule 13 and the violations may arise through grievances of Level I and II on a Suo moto basis or those as referred by the Ministry and this allows the committee to take action and block any content as they deem to be violative. This committee also has the Suo moto power to take up any matter for hearing. This power given to the ministry to block any content under Section 69-A (1) of the It Act will give an all-encompassing power to the legislature and thus violate the doctrine of separation of powers which would be ultra vires of the constitution.
The Identification of first originator of the first information has several negative impacts. Firstly, that it would have a chilling effect on free speech as now end-to-end encryption on instant messaging applications allows for dissent, therefore any encryption on the E2E design would impact the privacy of communications on these apps, and secondly if a person innocently shares an information with an incorrect fact would amount to several legal tussles. It also needed to be understood that originator may not be the author of an information and thus leading to falsification in many cases. WhatsApp itself is invoking the judgement of KS Puttuswamy Versus Union of India to argue that the traceability provision is unconstitutional and against the fundamental right of people of right to privacy in this Supreme Court's Judgement. WhatsApp itself in its blog as well as through its spokesperson has explained as to how the traceability thing will not work because the platform will have to break the end-to end encryption which is turned on by default for all messages End-to End encryption ensures that no third party and not even the messaging app can track down the messages. That would mean redesigning the app for the Indian Market and thereby putting the Innocent people under the garb of exposure and risk. WhatsApp stated "To comply with the traceability requirements, platforms may be forced to enable access to the contents of their user's communications, breaking end-end encryption and considerably weakening the security and privacy of their product". It also stated as to how the traceability would violate the human rights and whether the traceability strategy would work.
This 3 tier mechanism has many deficiencies firstly, being the power that is given to the MIB to decide upon what content is to be broadcasted and what is to be blocked and with respect to the news content as well, it will have negative important on the right of freedom of speech and expression as well there are high chances that it would be politically motivated which would set a dangerous precedent because the right of freedom of speech and expression would now be at the mercy of the government wherein it can even ban the new channels when it might put into light some actual wrong doings of the government which are actually the truth by government in the name of citing it as breach of national security laws might condemn the violation of the freedom of the media. This model might lead to censorship of numerable content and thereby undermining the fundamental rights of all the citizens.
Significant Social media Intermediaries are required to make the mandatory appointment of a Compliance officer, a Nodal Contact person and a Grievance redressal officer and each of these has to be Indian residents. As provided under Section 4 Significant Social Media Intermediary shall "(a) appoint a Chief Compliance Officer who shall be responsible for ensuring compliance with the Act and rules made thereunder and shall be liable in any proceedings relating to any relevant third-party information, data or communication link made available or hosted by that intermediary where he fails to ensure that such intermediary observes due diligence while discharging its duties under the Act and rules made thereunder: Provided that no liability under the Act or rules made thereunder may be imposed on such significant social media intermediary without being given an opportunity of being heard. (b) appoint a nodal contact person for 24x7 coordination with law enforcement agencies and officers to ensure compliance to their orders or requisitions made in accordance with the provisions of law or rules made there under. (c) appoint a Resident Grievance Officer, who shall, subject to clause (b), be responsible for the functions referred to in sub-rule (2) of rule 3".
Earlier these apps and people using these apps were having blanket protection and did not had the fear of any misuse happening through these platforms, now do not have that blanket privacy. Thus, the traceability aspect seems to be a red flag in the IT Rules 2021 which can by error frame an innocent person. This would affect the everyday lifestyles of the daily users. The regulation of video streaming platform may cause immense harm to the individual rights. As per 13(4) the power of censorship and the content blocking might affect the quality of the video content. India which is also a producer of high-quality content video which also competes internationally and this regulation may instead harm the Indian entertainment sector. It will also lead to impacting the digital rights of the citizen and thereby resulting in harming the creativity and economic harm as well.
The IT Rules 2021 are intended to bring the digital media broadly within a regulatory framework similar that of what is applicable to the print and media and thus creating a level playing field through the same as claimed by the Modi Government last year as well, However that is not the case because it cannot be justified as firstly there has been a lack of consultation with the digital media stakeholders and secondly when it comes to government oversight, the digital media and the OTT players are being treated similar to TV Channels and not newspapers.
The new IT (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021 are meant to empower the users of the social and digital media including the social networks, over-the-top platforms and online news sites and will hold those who offer these services accountable for the content that is circulating on their platforms and a means for addressing the grievance of content. The explicit power given to an intermediary to 'take down' content would affect their right of freedom of speech and expression. The Grievance Redressal mechanism of intermediary mandates the intermediary to acknowledge the complaint within twenty-four hours and dispose of the complaint within 15 days. These strict timelines could pose as a violation of their digital rights.
The Part III of the IT rules 2021 brings a complete overhaul of the Indian digital media. Such type of environment being created for the OTT players would harm them in a way that it would create an antagonistic environment for them landing them at the cost of heavy penalties and failure and thus being highly prohibitive to these players and their consumers. Substantial funds have to be divested in dealing with the grievance redressal. With the additional restrictive regulations will lead incentivising of the Black Market, thus harming those legitimate OTT players who will follow the rules and those content providers who shows content on their illegal platforms would escape these penalties. Breaking of the encryption to curb the online harassment or fake news would place harm to those platforms whose main aim is to protect the privacy and the security of the messages and places immense value in encryption. Thus, these regulators need to get in touch with the market forces and the consumers to understand what all is actually required and what may harm them, else the rule prima facie would become futile. It is therefore required to carefully consider and revisit these rules which comes with a host of risks. Tt cannot be evaluated now because the due diligence by social media intermediary has not yet been implemented but as per normal scenario, we can assume that an increased regulation is never good for business. Social media companies might see a dip in Ad revenues if certain Ads are taken down, thus restricting the creativity of the Ad creators and violating their right of speech and expression and cancerous for the free flow of democracy. All this will have to be evaluated in a bi-monthly duration.
Addressing the research question with respect to the spreading of fake news as to whether it has led to the reduction of the same would depend upon a significant data collection by the experts and evaluation on the same as though the majority of new obligation entered into effect on Feb 25, the day the rules were published in the Gazette, the due diligence for significant social media intermediaries will come into effect on May 25th, 2021. Recently, on May 25 itself which was the last day for companies to comply with the rules WhatsApp has said that these social media rules are unconstitutional and filed the case as reported by the Indian Express.
Non-compliance of these rules would impose these intermediaries to a significant liability i.e., under Rule 7 of 2021 rules, if an intermediary fails to observe any of these rules it would lose protection under Section 79 of Information Technology Act and would be open for liability if any third-party posts unlawful content on their platform for example, if any third party posts any defamatory post or content, the respect intermediary i.e. Facebook would be held liable and that would Facebook as a platform would have to scrutinize each and every information which would also hamper the free flow of Information. That does not mean that they will get banned, but the legal immunity protecting them from content shared on their platform will be withdrawn. Thus, the protection offered under section 79 is conditional. Therefore, author believes that in most ways, it also setting a bad precedent by hampering and unnecessary invading to the most import rights for the citizens and which forms the spine of the democracy i.e., freedom of speech and expression and the right of privacy.
Lastly addressing the last question of this research article, under the IT Rules 2021, the publisher of news and online affairs only covers the digital content. As per the definition clause provided under Section 1(i) which defines digital content as 'digital media' means "digitized content that can be transmitted over the internet or computer networks and includes content received, stored, transmitted, edited or processed by 1. An intermediary or 2. A publisher of news and current affairs content or publisher of online curated content" The government's framework as per the rules is to regulate the online content which covers the digitised content that can be transmitted over the Internet or the computer networks so it would include intermediaries such as Twitter and Facebooks and the publisher of news and current affairs content and curators of the content and according to the guidelines titled Information Technology( Guidelines for Intermediaries and digital media ethics code) Rules 2021 digital news media and the publishers will have to follow the rules that applies to print and electronic media and bringing them under the ambit of 69(A) of the Information Technology that gives the Takedown powers to the government. The publisher of news and current affairs would cover the online papers, news portals and news agencies, but it will not include the replica E- newspapers of any newspaper as provided under definition clause (t). It also does not cover the news operations that does not qualify as a systematic business activity, and thereby excluding the blogs and the non-profit publishers. Newspapers and TV news channels are governed under the Press Council of India Act, 1978, and Cable Television Networks Regulation Act, 1995, respectively. Now, according to the proposed changes, these acts will also apply to online news and current affairs portals under the Code of Ethics. However there exists an arbitrariness with regards to this definition which excludes the replica of E-newspapers because if for instance the e-papers of the newspapers starts trending on twitter for some controversial news or for any reason whatsoever would that fall under the category of publisher of news and current affairs content? Therefore, this vagueness in the definition might cause discretionary powers in the hands of the central government to cause censor of any information being provided through the digital media. Therefore the author suggests that, it is the need of the hour of the hour for the government to revisit these rules for its certain negative aspects and impacts and that proper parliamentary oversight or a judicial review is done for these draft rules because some of these rules might lead to tremendous consequences for the citizens of our country and is some aspects can even become worse for instance in the case of extension of the executive power with respect to regulation of the news media and the video streaming platforms. For the players in the OTT space, the rules impose burden and might work against them by regulating them. Even if the intentions of the rule could have been more benefitted after a more deliberate consultation from the stakeholders.
The author, Ronica S. Dass has contributed this write-up during her research assistantship at M/s. Black Robes Legal. The views, thoughts, and opinions, as are so expressed, belong solely to the author, and not to any other person in any manner whatsoever.
1. Draft Information Technology (Guidelines for Intermediaries And Digital Media Ethics Code) Rules, 2021: Available at https://drive.google.com/file/d/1BEOhgR4dDWW9KSC3OfV30lB-JXqizl3P/view
2. Latest Draft Intermediary rules 2021: Available at https://internetfreedom.in/latest-draft-intermediary-rules-fixing-big-tech-by-breaking-our-digital-rights/
3. Rules & Regulations Review the Information Technology Rules, 2011: Available at https://prsindia.org/files/bills_acts/bills_parliament/IT_Rules_and_Regulations_Brief_2011.pdf
4. The Great Stretching of 'Due Diligence' Requirements Under Section 79: Available at https://thewire.in/tech/new-it-rules-the-great-stretching-of-due-diligence-requirements-under-section-79
5. KS Puttuswamy Versus Union of India, WP (C) 494/2012: Available at https://www.scoberver.in/
6. WhatsApp vs Indian government over new IT rules for social media, Indian Express: Available at- https://indianexpress.com/article/technology/tech-news-technology/whatsapp-vs-indian-government-over-new-social-media-rules-7-points-to-note-7332708/
7. What is traceability and why does WhatsApp oppose it? Available at - https://faq.whatsapp.com/general/security-and-privacy/what-is-traceability-and-why-does-whatsapp-oppose-it/?lang=en