Opinion Report

Do the New IT Rules Curb Digital Media Freedom: A Commentary

The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 was announced by the Central Government at a press conference by Prakash Javedkar (Minister for Information and Broadcasting) and Ravi Shankar Prasad (Minister for Electronics and IT). The section 79 (2) (c) and section 69A(2), read with section 87(2)(z) and 87(2)(zg) of the Information Technology Act, 2000 gives the power to the Central Government to make rules and guidelines regarding intermediaries.

These rules will replace the Information Technology (Intermediaries Guidelines) Rules, 2011. An ‘Intermediary’ and ‘Social Media Intermediary’ under Section 2 of the I.T. Act and Rule 2(z) of the I.T. Rules 2021 is defined as a person who receives, stores or transmits any electronic record on behalf of someone else or who provides any service with respect to the same, or which enables online interaction between multiple users. It includes websites, apps, social media networks, blogs etc.

BACKGROUND:

The rise of social media users since the last decade has been tremendous as the internet and mobile phone accessibility has been extensive. Some of the huge social media platforms comprise a large part of the population of India as their user base. There are around 530 million whatsapp users, 450 million YouTube users, 410 million Facebook users, 210 million Instagram users and around 21 million Twitter users in India and the numbers keep increasing. These online platforms have given the people an opportunity to be creative, express themselves freely, showcase their art and talent, share their thoughts and views which includes their basic right to question the government and put forward their opinions. The Supreme Court in 2018(Prajjawala case) had suggested the government of India to frame necessary guidelines in order to eliminate child pornography, images and videos of rape, gangrape and other such toxic content in content hosting websites and applications. One of the primary reasons for these rules to be notified according to the government was that until now there was no specific provision and regulation to deal with the social media intermediaries and other digital platforms. There are many cases of fake news being spread across the country everyday through social media.

These fake news have an adverse impact on the readers who believe it to be true. Many social media platforms like Facebook, Instagram and Twitter are being abused and misused by the anti-social elements to spread disharmony, incite violence and to disturb the public order. Many women users are threatened and given rape threats online. There are instances of users getting into verbal spat, abuse and defaming each other through trolls and memes. Therefore, in order to ensure online safety and dignity of the users, these rules have been notified. In case any right of a digital platform user is infringed, these new rules, according to the government would give him an opportunity to seek redressal for his grievances. The intermediaries in this regard have been classified under two parts; ‘social media intermediaries’ and ‘significant social media intermediaries’, the latter comprises companies which have a significant user base and thus are more accountable.

STRUCTURE:

The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 have been classified into three parts.

Part I is Preliminary which deals with the definitions of terms.

Part II It deals with the guidelines in relation to the due diligence by the intermediaries which covers the regulation of social media intermediaries. Apart from the mainstream social media platforms like Facebook, Instagram and Twitter it includes the messaging apps like WhatsApp, Telegram, Signal etc. Intermediaries have been divided in to two new classes namely ‘social media intermediary’ under Rule 2(w) and ‘significant social media intermediary’ under Rule 2(v). A significant social media intermediary will have to have 5 million registered users. Rule 4 states that an intermediary, including social media and significant social media intermediary have to observe due diligence while discharging its duties.

The intermediary has to inform the user not to publish any content that is objectionable. Previous to these rules, the intermediaries were protected by Section 79 of the I.T Act under which they were exempted from the liability of any content published or hosted by the third party. The provisions of this clause were called ‘safe harbor provisions’. The new Rules take away these relaxations, now if the due diligence is not followed by the intermediary, those so called ‘safe harbor provisions’ will not provide them immunity from legal prosecution. In case any such content is posted, it shall be taken down from the platform within 36 hours from the receipt of the court or on being notified by the proper authority, but the intermediary has to keep such post or information with itself for at least 180 days for investigation purposes. A Grievance Officer under Rule 3(2) has to be appointed and his contact details be published on the website and application.

This new rule would allow the users to file complaints themselves or by any other person on their behalf, it mandates the Grievance Officer to acknowledge the complaint within 24 hours and resolve it within 15 days from its receipt. Rule 4 which deals with the ‘Additional due diligence to be observed by significant social media intermediary’ rather provides an unusual and contrary provision to the terms and conditions (pertaining to end to end encryption) of most of the social media apps related to messaging. According to the Rule 4(2), if a court thinks fit that because of an online content such as a post or forwarded message, the sovereignty and integrity of India, the security of the State, friendly relations with foreign states or public order is at stake, or it is a sexual offence relating to rape and child sexual abuse, a  judicial order could be passed by a court under Section 69 of the I.T. Act as per the I.T. (Procedure and Safeguards for interception, monitoring and decryption of information) Rules, 2009, which would compel the ‘Significant social media intermediary’ to enable the identification of the first originator of the information. Furthermore, if the first originator of such content is located out of India, then the first originator of such content within India would be considered as the first originator.

Part III of The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 deals with the regulation and code of ethics of digital and online news media though it is not clear as to which news media platforms are covered under it. The OTT platforms like Amazon Prime, Netflix, and Disney+ Hotstar etc. are administered by the Ministry of Information and Broadcasting. The rules regarding digital and online media are largely borrowed from the pre-existing regulations governing the T.V media. The digital news platforms will have to adhere to the Norms of Journalistic Conduct and Cable television network regulation Act 1995. While producing and streaming any content online, the OTT platforms have to make sure that such content does not encourage any kind of violence, disturb public order, hamper the sovereignty and integrity of India or affect friendly relations with other countries.

Also, the OTT platforms have to consider India’s racial and religious diversity and take appropriate precautions while streaming content which shows practices, beliefs or acts of any religious or racial groups. It would likely have an adverse effect on the freedom of speech and artistic expression as it would provide a formal validity from such religious groups who are against the content.

Part III also provides for a government mandated three-tier redressal mechanism.

1st Tier- Grievance Redressal Mechanism (Self Regulating Mechanism) has to be established by the platform itself under Rule 11. The company shall appoint a Redressal Officer who shall act as the nodal point for interaction with the complaint, the self-regulating body and the Ministry. The officer has to register the complaint within 48 hours of its receipt and take a decision within 15 days of the receipt of such complaint. If the complainant is not satisfied with the decision, they may take it to the appellate tier.

2nd Tier – Self Regulating Body under Rule 12 contains a total number of six members and it should be registered with the Ministry of Information and Broadcast within 30 days of its constitution. This is an appellate body headed by a retired Supreme Court or a High Court judge or any other experts from the field of media, entertainment, broadcasting and technology. It has the power to issue a warning and to furnish an apology by the entity. If the OTT entity fails to comply with the guidelines of the self-regulatory body, it shall refer the matter to the Oversight Mechanism (3rd Tier) for any further action.

3rd Tier- Oversight Mechanism under Rule 13 and 14, is the last tier of the grievance mechanism system in which the complaints are dealt directly by an Inter Departmental Committee or Inter-Ministerial Committee (IMC) formed by the government. The IMC has the power to publish a charter for self-regulating bodies, including Codes of Practices. The Committee is headed by the Joint Secretary of the Ministry of Information and Broadcast and consists of representatives from different Ministries such as that of Information and Broadcasting, Law and Justice, External Affairs, Electronics and Information Technology etc. It is likely to be seen that the ultimate control over the OTT is with the IMC. Broadcasting Content Complaint Council (BCCC) for non-news channels and the News Broadcasting Standards Authority (NBSA) for news channels is the self-regulatory body in the television industry which looks into the complaints regarding the violations in the programs. Similarly, an Inter-Ministerial Committee will look into the complaints regarding the online digital media.

Rule 16 explicitly provides that in case of emergency, if the Secretory (ministry of Information and Broadcasting) is satisfied that any content is necessary and justifiable to block for public access, may do so without giving the entity an opportunity of hearing. This provision fundamentally goes against the Principles of Natural Justice and seems draconian as it is.

As one looks closely at these Rules notified by the Government, they may realize that these rules could be challenged in a court of law for they violate the very fundamental rights provided to the citizens by the Constitution of India. The fundamental right to freedom of speech and expression under Article 19(1)(a) of the Constitution is not only a right of a citizen to be informed and to have different opinions, but also it is a right of an author and publisher to be able to express and put forth the different viewpoints. Reasonable restrictions put on the social media and digital media and news platforms are appreciated, but it should not curtail the basic minimum right to express because it will affect the artistic freedom involved in creating content for such platforms irreparably. While these rules were drafted, none of the digital News Publications were given a chance to comment or consult on these guidelines regarding the digital news portal. An establishment for its own interest cannot crush the ideas and opinions of the large public.

Rule 4(2) which provides for the furnishing of identity of the first originator of the content, in such times where almost everyone uses social media to express his/her opinions and thoughts and there are online arguments over trolls and memes regarding politics, the terms ‘sovereignty and integrity of India’, ‘Security of the State’ seem to be unambiguous and vague. The government could also use these provisions to gag the media or else a sedition charge could be put easily as it has been happening in the past with some courageous journalists.

These rules are arguably unconstitutional, the reason being that the code and ethics which are applicable to T.V or Print media, is sanctioned by the Parliament but there was no Parliamentary sanctions for the I.T Rules 2021. Moreover, The I.T. Act previously did not include digital news as a category.

In the information age that we live in, everything is just a click away. Even the protests happen through the social media platforms, the recent example of which is the Farmers’ protest which gained international notice and support because of social media. If such protests against the establishment happen in future, the government could easily bend these rules to their favor and crush the protests to the ground.

The most debated Rule 16 which grants the Departmental Committee the power to block any content in case of emergency without giving the publisher or producer an opportunity to proper hearing is as draconian as it sounds. One of the basic Principles of Natural Justice of any person, which is the ‘right to be heard’ has been taken away by this provision.

The provisions for self-regulation by the digital platforms seems the right thing to do, but it had been there earlier as well. Now, it will be governed by the Self-Regulatory body which is comprised of and approved by the government body or its officers. The grievance system provided under the rules could also be misused by the authorities as they are the final ones to decide whether or not the digital content is acceptable.

Contributed by: Akshat Vikram, Master of Law (LLM) University of Silchar, Assam

(Image Courtesy: www.bdo.co.za)

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