The Union government has laid down the rules and the framework for regulating social media companies, streaming service providers and digital news publishers. The new Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, 2021 will bring these organisations under a three-tier regulatory framework. The proposed new rules will cover social media companies such as Facebook and Twitter, OTT platforms such as Netflix, Amazon Prime, Hotstar etc, and also digital news publishers like The News Minute, Scroll, Quint, The Wire, Newslaundry, The Cue etc.
The 29 pages of rules, which were brought in on Thursday, have raised concerns over several factors, including privacy of users and censorship of digital news media, which will ultimately affect citizens’ rights in India, say experts. The Supreme Court of India in a historic judgement had declared that the right to privacy is a fundamental right protected under the Indian Constitution. The court stated that this right stems from the fundamental right to life and liberty.
The new rules come on the back of several controversies over shows on OTT platforms, the government’s demand to block some social media handles including those of news platforms, and several defamation cases being filed against digital news publishers for reporting news. Speaking at a press conference in New Delhi on Thursday, Union Minister for Information and Broadcasting Prakash Javadekar said while press freedom is important, “every freedom should be responsible freedom.”
As per the new rules, social media companies, OTT streaming platforms and digital news publishers will now come under a three-tier regulatory regime.
The first tier — Level I — will be self-regulation by the company itself. For this, every company will have to appoint a grievance redressal officer, and publish their details on their websites. The social media companies will have to appoint a chief compliance officer, nodal contact officer and grievance officer.
The second tier — Level II — has been called “Self-regulation by the self-regulating bodies of the applicable entities” by the government. At this level, industry bodies will address complaints made against organisations that come under them. However, while the term ‘self-regulation’ is used, the rules stipulate that the grievance redressal mechanism of the industry body will have to be headed by a retired judge empanelled by the government, and will have to have ‘experts’.
“The self-regulatory body referred to in sub-rule (1) shall be headed by a retired judge of the Supreme Court or of a High Court, who shall be appointed from a panel prepared by the Ministry, and have other members, not exceeding six, being experts from the field of media, broadcasting, technology and entertainment,” the rules said.
The third tier — Level III — is government regulation via an inter-departmental government committee appointed by the Ministry of Information and Broadcasting. “The Ministry shall constitute an Inter- Departmental Committee, called the Committee, consisting of representatives from the Ministry of Information and Broadcasting, the Ministry of Women and Child Development, Ministry of Law and Justice, Ministry of Home Affairs, Ministry of Electronics and Information Technology, Ministry of External Affairs, Ministry of Defence, the Indian Computer Emergency Response Team and such other Ministries and Organizations, including domain experts, that it may decide to include in the Committee,” the rules said.
So for instance, if a complaint is filed against an OTT show like Tandav, the complaint first goes to the OTT platform’s grievance officer, who is supposed to address the grievance within 15 days. If the complainant is not happy with the redressal, they can go to the industry body’s grievance committee, which is again given 15 days to respond. If the complainant is still unhappy with the decision, they can go to the ministry.
The action that can be taken under each level includes — removal of content, issuance of an apology, giving a warning, changing the rating of the content etc. The final decision lies with the inter-ministerial government body at Level III, and this has raised serious concerns about censorship.
The rules also stipulate that social media platforms will have to track the ‘originator’ of any post on the platform. While the government is placing it as a move to fight fake news, privacy experts have raised concerns about encryption if companies like WhatsApp, Signal etc will have to follow them. Internet Freedom Foundation tweeted, “Due to excessive vagueness in the rules, there is a possibility of over-compliance by social media companies to escape liability. The collateral damage here is citizen free speech and privacy which will be unconstitutionally hampered as a result.”
“IFF feels that there are better ways to tackle such content than sliding down the slope of automated censorship & surveillance culture,” they added.
The first concern we are highlighting is the covert regulation of OTT and news media platforms through proxy. The draft IT Rules have defined a “Code Of Ethics And Procedure And Safeguards In Relation To Digital/Online Media”.
— Internet Freedom Foundation (IFF) (@internetfreedom) February 25, 2021
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Second, the draft IT Rules have introduced the requirement of traceability of the originator of information, which would break end-to-end encryption. Many platforms (Whatsapp, Signal etc.) retain minimal user data and use E2E encryption to provide privacy to users.
— Internet Freedom Foundation (IFF) (@internetfreedom) February 25, 2021
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— Internet Freedom Foundation (IFF) (@internetfreedom) February 25, 2021
Third, the draft IT Rules require social media platforms to deploy AI to proactively identify objectionable content like sexual violence.
There are better ways to tackle such content than sliding down the slope of automated censorship & surveillance culture.
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Digital media organisations have raised concerns about censorship by the government under the new rules, especially since a multi-ministry government body can ultimately decide what content can and cannot be published by these organisations.
Editor-in-Chief of The Wire, Siddharth Varadarajan, said in a statement, “On a quick reading, the burdens being placed on publishers of digital news go beyond the basic restrictions on freedom of speech (and thus freedom of the press) envisaged by Article 19 and are therefore ultra vires the Constitution. Digital publishers are already subject to Article 19 restrictions and the numerous defamation cases filed against them, not to speak of various criminal cases, are proof of how existing laws are being used (or abused) in order to regulate digital media.”
“Additionally, these guidelines are ultra vires section 79 of the IT Act, which provides a ‘safe harbour’ through an exemption from liabilities in certain cases. This makes these guidelines a camouflaged way to indirectly regulate online news media by bringing these platforms under the aegis of the Information Technology Act, 2000 instead of following the due process of parliamentary scrutiny and subsequent legislation,”
While the Supreme Court has declared Right to Privacy a fundamental right, the new IT rules, can break encryption as mentioned earlier, will mean that you and I may not be able to safely exchange chats, photos, or information over messaging or social media platforms. Chats with your family, friends, or partners, private photos, source based information that journalists get, are all open to access not just by bureaucrats and government bodies — but also by hackers.
Speaking to TNM, Apar Gupta, executive director at Internet Freedom Foundation, said, "There is a reasonable chance that it will break end-to-end encryption and it will lock out platforms that deploy this encryption but do not have sizable resources like WhatsApp or Facebook. For instance, many Indians use Signal and Telegram and these companies will not be able to operate in India in active compliance of these conditions."
Union Minister Prakash Javadekar in his press conference on Thursday said that he fought for press freedom during the Emergency, and so did his colleague Ravi Shankar Prasad. However, with the new rules and fear of censorship looming over digital media organisations, it is citizens who will once again be affected, without access to important information.
Commenting on the censorship that the new rules bring to the table, Siddharth Varadarajan said, “No self-respecting media can accept restrictions which violate Constitutionally guaranteed rights and the media in India have always resisted similar attempts made in the past. These guidelines will not save the Modi government from media scrutiny, just as the UPA could not have protected itself with such foolish and illegal moves.”