By Ashutosh Shekhar Paarcha
The government notified the Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, 2021 on February 25. It will replace the previously enacted Information Technology (Intermediary Guidelines) Rules 2011. These rules were passed under Section 69A(2), 79(2)(c) and 87 of the Information Technology Act, 2000.
India has the second highest number of internet users in the world after China. The Indian digital market is expected to grow by $29 billion by the end of 2021. A large portion of this digital market comprises of digital news and entertainment industry. Over The Top (OTT) market alone has seen a tremendous growth in recent years and is expected to touch approximately $50 billion globally by 2023. This will make India the world’s sixth largest OTT market.
While the industry has grown rapidly, a significant part of it has remained unregulated. This has created problems such as the rapid growth of child pornography, hate speech, spread of misinformation and digital bullying. For the digital space to remain safe and compliant of constitutional and cultural values of the country, it is necessary to have relevant regulations and guidelines. One such attempt has been the introduction of the IT Rules 2021.
With the enactment of the IT Rules 2021, the government is regulating the following uncensored media platforms:
- OTT platforms such as Netflix, Amazon Prime, Alt Balaji, etc.
- Digital News Media such as The Wire, The Print, etc.
- Messaging applications such as WhatsApp, Telegram and Signal.
IT Rules 2021 define these media outlets as intermediaries. These intermediaries are sub-divided into two sets based on the number of users, social media intermediaries and significant social media intermediaries. Social media intermediaries need to comply with General Guidelines under Rule 4 of the IT Rules 2021, which deal with due diligence as well as consequence of breach. Significant social media intermediaries, on the other hand, have to follow additional rules such as first originator, special measures for sexual offences, voluntary verification of users and notification to originators on removal of information provided under Rule 5 along with the general rule.
IT Rules 2021 attempts to bring accountability and censorship in the digital space in the context of constitutional rights of Indian citizens. This attempt to substantively cover several aspects of the digital media has the following key features:
- Three-tier Grievance Redressal Mechanism: IT Rules 2021 have made it mandatory for OTT platforms to have a three-tier grievance redressal mechanism to censor content of publishers. This process has the following requirements: Tier 1 will require the publisher to appoint a grievance redressal officer who will work on the complaints filed against the publisher within 15 days of such a complaint being filed. Tier 2 requires the publisher to compulsorily register himself with the ministry of information and broadcasting and to create a self-regulating body that will address the matter which has not been resolved within 15 days of it being made. Tier 3 requires the government to form a regulating body that will oversee the matters that were left unresolved by the self-regulating bodies.
- Enabling Identity of the Originator: The government aims to find the First Originator of the message circulated via messaging applications such as WhatsApp and Telegram.
- Digital News Media: IT Rules 2021 will put the digital news and digital news websites under the purview of the IT Act of 2000.
The IT Rules 2021, though made to protect citizens from increasing cybercrime, can be seen to infringe on certain rights of people in the following manner:
- The grievance redressal forum to censor the OTT platforms will infringe the freedom of speech and expression of the artist. The OTT platforms by the Central Board of Film Certification enjoy more creative freedom than their offline counterparts. The dual censorship mechanism will limit production of original content, resulting in monetary loss to the entertainment industry.
- The other concern is the implementation of censorship and grievance redressal mechanism without any primary legislation. Such laws should have been introduced as an act in Parliament. This would have allowed for it to be debated and scrutinised by a parliamentary committee and the general public. Bypassing these constitutional practices is damaging to the democratic functioning of the government and reduces the scope of valid critique, limiting improvement. The Opposition also has an important role to play in the legislative process and issuance of rules completely undermines the same. Here, a new set of rules have been enacted for major intermediaries without proper engagement with the public and the Opposition.
- Prior to IT Rules 2021 coming in force, 15 OTT platforms signed a self-regulation introduced by the Internet and Mobile Association of India aimed at censoring the content, but these regulations were rejected by the government last September. The same government later introduced the three-tier censorship, which includes self-censorship as well as government-regulated censorship. This dual mechanism will have a chilling effect on freedom of speech and restrict creative expressions of artists.
- The IT Act does not regulate digital news media and hence, rules made for the same are outside the purview of the parent act. This constitutes constitutional overreach on the part of the government. Additionally, the IT Act also gives protection to digital news media under Section 79, which provides a safe harbour under certain circumstances. Hence, regulation of digital news media outlets through the IT Rules 2021 could be ultra vires to Section 79 of the Act.
- Furthermore, the definition provided for the “publisher of news and current affairs content” is vague. The vagueness can be misused by the government by extending its application on several websites which would not necessarily be “news outlets”. They can use these discretionary powers to censor news websites and other online content arbitrarily without providing these news websites and other digital citizens a proper mechanism to challenge any restriction of their content by the government.
- The government also aims to find the first originator of messages which are illegal or against public policy and which are being circulated through messaging applications such as WhatsApp, Telegram and Signal. Therefore, they have made it mandatory to disclose the identity of the person who was the originator of the said message under Rule 5(2) of the IT Rules. This cannot be without compromising end-to-end encryption facilities, essential for digital privacy, of users. End-to-end encryption is also protected under Section 84A of the IT Act which provides for the government to prescribe modes and methods of encryption to “secure use of the electronic medium and for promotion of e-governance and e-commerce”. Therefore, Rule 5(2) is in conflict with the parent act.
- Supplementary to the above point, the government has asked the social media messaging content to stop pornographic content by implementing an Artificial Intelligence based mechanism. This AI will risk the privacy of the user without any accountability.
- Lastly, the government has equipped itself with an arbitrary power to take down any online content which it deems problematic without any formal procedure. This is also a clear breach of freedom of speech and expression under Article 19 of the Constitution.
While India is struggling to make coherent laws to regulate digital intermediaries, let us see how developed countries are regulating the OTT platforms.
UK: Currently, there is no regulation for OTT platforms here. In 2019, the British Board of Film Certification and Netflix collaborated to create a rating system which divides the content (documentaries, series and movies) into five categories. Thereafter, a white paper was released by the UK government on the threat of the content posted online. The paper also calls for closed consultation. It suggested legislation to regulate the digital media among other things.
Australia: OTT platforms here are governed by the Broadcasting Services Act, 1992 (BSA). The mechanism under which the online content is regulated was introduced in January of 2000. Since then, BSA governs both online and offline content, irrespective of classification. The Act provides for four categories to classify the content. Recently, Netflix was approved to self-classify after its tool showed 94 percent accuracy in the two-year trial run.
Though legislation is the need of the hour to control unregulated digital intermediaries, the law laid down in IT Rules 2021 should have been made through the proper channel of primary legislation and not as a rule supplementary to the IT Act. These rules are inconsistent with the parent act, making them unconstitutional. Even if these rules pass the constitutionality test, the government must take measures to see that the fundamental right to privacy and freedom of speech and expression of the citizens are protected.
—The writer is an advocate, Supreme Court