Can the Information Technology Rules, 2021, mark the end of creative freedom enjoyed by OTT Platforms?

With special reference to Article 19(1)(a), (g) and 19(2) & (6)

The issue:

 Ministry of Electronics and Information Technology through its official gazette dated 25 February,2021 issued Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021  notified under section 87 of The Information Technology Act,2000 .These will replace the 2011 Intermediary rules.

Background:

The guidelines primarily serve to regulate the previously self-regulated social media, OTT (Over-the-top) platforms and digital news such as Netflix, Hotstar, SonyLiv, Instagram and the likes. These rules come after a recent controversy garnered by Amazon original series Taandav and the subsequent apology from Amazon in lieu of the controversy. 

It is no secret that the OTT platforms have grown like never before especially during the period of lockdown which provided these platforms with a market which otherwise would have taken years to reach. With the falling internet costs and greater accessibility to smart devices these platforms no longer exist to serve just the elite.

This provides creators with a greater room for creativity especially to the smaller, independent creators. This is why the creators have been able to put out relatively more experimental contents and thus have contributed greatly to the Indian cinematic richness in the past couple of years

Why the need for regulations now?

India ranked 142 in the Freedom of Press Index in the year 2020. This comes after there was a simmering feeling among the citizenry that the mainstream media is being used to deflect people from the real issues.

In the period of lockdown (or since 2016) social media has proved to be both a boon and a bane, because despite the social media providing a space for people driven discussion free from screaming journalists, it also was a cause of chagrin for many given how easily it can be used to manipulate news and create distrust among communities.

With a growing distrust, social media activists are of the view that these regulations might be used as a tool to control the media narrative further.

Objective of the New Regulation:

The new regulations aim to bring the social media and OTT platforms under the Ministry of Information and Broadcasting as provided by section 87 of the Information Technology Act,2000. They also introduced three point content regulation:

  1. Age-based classification (the five categories being Universal, 7+, 13+, 16+ and Adult);
  2. Parental locks for content marked 13+;
  3. A three tier grievance addressing mechanism.

The Grievance Mechanism for OTT:

The grievance mechanism expands in a way where the first authority is the Grievance Officer for each OTT platform to address the user complaints within a period of 15 days.

 In case the grievances remain unaddressed for the said period or are handled unsatisfactorily the complaint will then be referred to a self-regulatory body. This body will be represented by various digital news publishers and OTT platforms and will be headed by a retired Supreme Court or High Court judge.

 The last tier is the Ministry of Information Broadcasting (MIB). MIB will form an inter-departmental committee that will be incharge of ensuring that these guidelines are adhered to. The committee will have within its power to take down objectionable content and can even take suo motu cognisance of any issue in regard to an OTT

Social Media Control:

Another feature of the act is that it divides social media into two categories:

  1. Social Media intermediary
  2. Significant Social Media intermediary

The IT Rules, 2021 enunciate that the publishers of news in the Digital Media would be required to observe Norms of Journalistic Conduct of the Press Council of India and the Programme Code under the Cable Television Networks Regulation Act, 1995 thereby providing a level playing field between the offline (Print, TV) and digital media. It covers within its ambit the regulation of Foreign News Media. Though it is unclear as to how the Indian regulator will enforce these rules upon foreign regulators.

Also PART II Due Diligence by Intermediaries and Grievance Redressal Mechanism will come under Ministry of Electronics and Information Technology,whereas, Part III which related to Code of Ethic and Procedure and Safegaurd in Relation to Digital Media will come under the Ministry of Information and Broadcasting

Thin Ice: Where censorship lies

The new IT Regulations are being seen as a government’s attempt at tightening grip over creative freedom and a breach on creator’s freedom of speech and expression reserved under article 19.

The new rules provide for enablement of the identification of the ‘first originator of the information’ by order of the Court or a Competent Authority as per section 69 of the Information Technology Act,2000.

The problem lies in the contention of messaging services like Facebook and Whatsapp which uses end to end encryption methods therefore making it impossible for them to comply with said rule. The case of Facebook Inc v. Union of India lies in the Supreme Court for determination of the same contention.

Also rule 5 of IT rules provides for Voluntary User Verification. The users who wish to verify their accounts voluntarily shall be provided an appropriate mechanism to verify their accounts and provide a demonstrable and visible mark of verification. Though the extent of the word “voluntary” can be debated and how quickly it can be turned to “mandatory” as happened in the case of Aadhar.

Quint Digital Media, the publisher of news portal The Quint, has challenged the constitutional validity of the new IT Rules.The Delhi High Court has issued notices to the Ministry Of Electronics And Information Technology(MEITY) and Ministry of Information and Broadcasting (MIB) 

The Kerala High Court had recently admitted a petition filed by Live Law Media against the new intermedia rules notified by the centre. The high court has directed the Union of India and the MIB not to take coercive action against the petitioners for non-compliance with the rules for digital news publishers.

Conclusion:

The new regulations can certainly be called soft regulations given how much stricter Central Board of Film Certification (CBFC) is with censoring of content. Though they might not breach the Fundamental rights of creators(as they just impose reasonable restriction)and are claimed to be self-regulatory they still create a regulatory mechanism. 

With the power to take suo motu cognisance and armed with section 69 A of the Information Technology Act,2000 which allows them to block content, it is highly unsure for the content creator as to what might shake the fragile sensibility of Indian audience.  

The regulations create a gateway for the government to step in and meddle with what the Indian audience can or cannot watch. It also works to instill fear in the mind of creators who have been venturing out and making tacit commentary on the current position of society. As a project takes months to build, a possibility that it might not get to see the light of the day will cause the creator to choose mellower topics.

About the Author – Aditya Pratap

Aditya Pratap is a lawyer practising in Mumbai. He argues cases in the Bombay High Court, Sessions and Magistrate Courts, along with appearances before RERA, NCLT and the Family Court. For further information one may visit his website adityapratap.in or view his YouTube Channel to see his interviews. Questions can be emailed to him at aditya@adityapratap.com.

This Article is made by Aditya Pratap in assistance with Aditi Dixit.

Cases argued by Aditya Pratap can be viewed here.

Disclaimer: Every effort has been made to ensure the accuracy of this publication at the time it was written. It is not intended to provide legal advice or suggest a guaranteed outcome as individual situations will differ and the law may have changed since publication. Readers considering legal action should consult with an experienced lawyer to understand current laws and how they may affect a case.

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