Government's 'Over The Top' Regulations: IT Rules 2021

Government's 'Over The Top' Regulations: IT Rules 2021

Over The Top (OTT) platforms have always been a matter of deliberations, politically and socially. With an upsurge in content supposed to be agitating certain social, cultural, and religious groups, the government found it essential to monitor their actions vis-à-vis traditional media.

The act was constantly negotiated since 2018. The growing popularity is seen right now owing to Twitter insights on farmer protests. The rule has been defined as Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021.

The article attempts to explain the laws with an unbiased approach and present the pros and cons of the same.

Censorship of Social Media Sites

Regulations for Social Media:

The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules the Government of India recently passed 2021 in the month of February 2021. Many views expressed on social media usually agitate certain social, cultural, and religious groups. To identify and take actions on publishers of content that authorities consider anti-national, the rule of  ‘first originator’ has been made. Even though any user's account gets banned, the data pertaining to the corresponding account will be retained up to sixty days after banishment.

The social media platform is supposed to appoint a Grievance Officer and resolve complaints in 15 days if such cases are observed. Also, filing monthly compliance reports on complaints received and actions taken is required. The grievance redressal structure that they are mandated to set up will be a three-tier structure.

The first tier will be a grievance redressal mechanism is to be established by the platforms themselves. The second tier will be a self-regulatory body headed by a retired Supreme Court/High court judge or an eminent person in the field of entertainment, media, broadcasting, entertainment, child rights, human rights, or similar other relevant fields. The third tier will be an ‘oversight mechanism’ by the government, an inter-ministerial committee (IMC).

What about Digital Media?

In the television industry, self-regulatory industry bodies such as the BCCC (Broadcasting Content Complaints Council) for non-news channels and the NBSA (News Broadcasting Standards Authority) take action on the complaint calls. They are also supposed to follow the Press Council of India and Cable TV Networks(Regulation) Act norms.

OTT Platforms:

Self-classify content into five age-based categories: U, U/A(7+), U/A(13+), U/A(16+), and A. Parental locks for any content classified as U/A 13+ or above. Age verification mechanism for content classified as A(adult). The government has imposed restrictions on content violating the following:

The country's sovereignty and integrity, the security of the state, India’s friendly relations with foreign countries, and content, inciting violence and disturbing public order.

Government censoring content

Why there is a need for New IT Rules?

Public order is a vague terminology not being stated correctly by the executive body. Do protests count? What about mass gatherings? Questions arise on these topics demanding answers. The second problem is regarding the ‘first originator rule’. Applications such as WhatsApp and Signal are famous for their end-to-end encryption rules granting freedom and security to the users. Complying to the demanded knowledge of the originator of some message, will they breach the security?

The print and electronic media are regulated by the Press Council of India (PCI) and Cable TV Network Rules of 1994-94, and they have an arching oversight. However, online media was never under any regulatory mechanism.

A 10-member committee, formed in 2018, included secretaries of Dept. of Home, Legal Affairs, Electronics and Information and Technology, and Industrial Policy and Promotion, suggested:

  1. To bring online information dissemination under regulation.
  2. To prepare policy for Foreign Direct Investment in this media
  3. To look at international best practices on such existing regulatory mechanisms.

In October 2019, a bench comprising CJI SA Bobde, Justice AS Bopanna, and V Ramasubramanian issued notices to the Central Government, Ministry of Information and Broadcasting, and Internet and Mobile Association of India to phase out regulatory policies for controlling online media and OTT platforms.

In 2020, an Ad-hoc committee of the Rajya Sabha submitted its report on the issue of adult content showing on social media and its effect on children and society. The report recommended tracing the originator of such content. In July 2020, Information and Broadcasting (I&B) Ministry proposed bringing the content being streamed on several OTT platforms under its purview.

There has been a boom in the social media and OTT business in the lockdown time, with more and more people coming in contact with these unregulated platforms and the content affecting their psychology. The fact that many contents on these platforms are in every way inappropriate can't be declined.

The ultimate bubble burst in the form of the grim and violent incidents at the Red Fort on January 26, 2021, when all kinds of misinformation were spread regarding the farmers' protests, international conspiracies were, unfolded and above all, a hashtag, 'Farmers' Genocide' was trended. It certainly had ramifications that will always stay as a blot on the face of Indian democracy. Interestingly, many political leaders and celebrities added fuel to the fire. This started the Indian government- Twitter feud, resulting in these much-required regulatory guidelines.

Removal of these rash contents from the internet will undoubtedly make the platforms all the more reliable and accountable, and in-line with the rules these companies are adhering to in many developed European and American states, where they actually feared actions against them. Now, according to the new rules, in a case, due diligence is not followed by the intermediary, the safe harbor provisions would not apply to them.

The rules will make the social media platforms come out of their just 'Internet Intermediaries' tag, and be responsible for the content being posted and take actions if found breaching the rules, thus eliminating the negativity that prevails currently.

The identification of the originator of a message/ content is for the prevention, detection, investigation, prosecution, or punishment of an offense related to sovereignty and integrity of India, the security of the State, friendly relations with foreign states, or public order, or concerning rape, sexually explicit material or child sexual abuse material punishable with imprisonment for a term of not less than five years.

The rules are robust in nature and will usher in a new era of more responsible and rather mindful and sagacious internet usage, emphasising the protection of women and children from sexual offences on social media. It is high time that the big-tech learn to follow the Constitution of the country they are operating in and contributes close to a whopping 375 million user base. These acts instil a sense of resilience from the abuse and misuse of the unregulated platforms that were prevalent.
 

Negatives of the New OTT Rules:

Censored OTT Content

The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021 has a fair share of opposition to its name as well. The opponents of the new rules say that the negatives of the rules outweigh the positives.

The regulations were dubbed "soft-touch regulatory architecture" by the government. Prakash Javadekar, the Union Minister of Information and Broadcasting, held a meeting with representatives from Netflix, Hotstar, Amazon Prime Video, Voot, ZEE5, AltBalaji, and other companies, a few days after the announcement to address questions about the guidelines. According to Bengaluru-based lawyer and independent researcher Divij Joshi,

The guidelines claim to be ‘self-regulatory’, but they feed into a regulatory system that can substantially expand the government’s power to censor content, this is done by tying the guidelines to the [IT Act’s] Section 69A requirement to block content. The regulations thus give the government overriding powers to step in.

(Source – The Hindu)

Digital news sources and over-the-top (OTT) providers shall follow a Code of Ethics outlined in the Rules' Appendix. The Code of Ethics' requirements are ambiguous and overbroad, and they would have a chilling impact on publishers' freedom of expression as well as customers' ability to access the material. OTTs must also take into account India's multi-ethnic and multi-religious context and "exercise due care and judgment" when featuring behaviours, values, traditions, or opinions of any racial or religious community, according to the Code of Ethics given in the new rules.

The Intermediary Rules also established a three-tier structure to ensure adherence to the Code of Ethics. At a press conference on February 25, 2021, the Union Minister of Information and Broadcasting praised the three-tier mechanism as self-regulation by publishers with limited government intervention. When you look at the Rules closely, you'll see that they cover a lot more than just "minimal government interference."

The First Tier of the Regulatory Body is always under government control. Even though the council is theoretically supposed to be appointed/elected by the media sector, the Ministry for Information and Broadcasting maintains approval control over the body's makeup.

The Intermediary Rules provide emergency powers to the MI&B in cases where “no delay is acceptable”. The Secretary may, if she/he is satisfied that it is necessary or expedient and justifiable, issue directions for blocking online content to persons, publishers, or intermediary in control of hosting such information without giving them an opportunity to hear.

The objectors question that who will be held culpable for any obscene, profane, or seditious content made available to the public.

For example, millions of peoples express their opinions on varied topics on YouTube. Now, any seditious or illicit comment can be expunged by the Ministry, and the platform, i.e., YouTube, will not be responsible as it is a free medium that does not own the content published there.

Up to now, OTT platforms have two big advantages. First, the kind of storytelling that OTT platforms allowed you to do; you could share your story in whatever way you liked. Second, the longer runtime of a series (as opposed to a theatrical film) allowed you to spend more time with the plot and the characters. Much of this will only improve the viewing experience, but the current regulations will put a damper on such unbridled imagination. As a movie director states,

Since movies usually need hundreds of people to work on a regular basis for many months, producers would be forced to make sacrifices in order for the script to be released without restrictions.

An overabundance of restrictions/guidelines can limit content creators' creative freedom, affecting OTT site viewership in the process. The actors and new-age content creators who are breaking all moral stereotypes to bring us the new vibrant face of the entertainment industry have little hope under the Ministry of I&B's fate.

CONCLUSION

Since the content made available to the 2 million users daily resonates with the essence of Indian society in terms of religion, caste, social norms/behaviour, economic status, caste, and language, the issue of content control on OTT is important. On paper, the instructions are flawless, but the real issues can only become apparent after they are implemented. It remains to be seen if this results in practical censorship for digital media or promotion of freedom of speech and content producers practising self-regulation.

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