The government has announced new guidelines to regulate digital content, including social media and over-the-top (OTT) streaming services, to curb the ‘misuse’ of these platforms. In other words, issues relating to digital media and OTT platforms will now be administered by the Ministry of Information and Broadcasting but the overall architecture will be under the new Information Technology Act, which governs digital platforms.
The new rules have been announced by the Center to “establish a soft touch progressive institutional mechanism with a level playing field featuring a Code of Ethics and a three-tier grievance redressal framework for news publishers and OTT platforms on the digital media,” according to Union minister Ravi Shankar Prasad.
Concerns have been raised about rampant abuse of social media platforms, spread of fake news and misinformation for several months now. Several incidents during the pandemic in fact triggered the massive step taken by the government even though the ministry reportedly prepared a draft in December 2018.
Earlier it was reported by Mint that a Singapore-like model will be set up, which functions under the Infocomm Media Development Authority (IMDA). As per its regulation, service providers are required to obtain a licence, classify content on their platforms, display ratings and content descriptors and spell out the prohibited content. Also, much like the Singapore rules, the Indian government wanted to introduce penalties for code violation.
Around that time, 17 of India’s largest streaming services hurriedly signed a self-regulation toolkit under the aegis of the Internet and Mobile Association of India (IAMAI). The signatories said they have included government suggestions after their first content code was rejected by the ministry in September 2020.
Despite prodding from the government, the video streaming services could not come up with a unanimously acceptable code for two years. But when they did, the government found a two-tier complaints redressal mechanism missing. That required a more stringent rule to be laid down, reported the news site.
Cut to the present. In the new guidelines as announced by the government, a three-level grievance redressal mechanism has been established for self-regulation to enforce the Code of Ethics.
- Level-I: Self-regulation by the publishers – Self-regulation by the Publisher: Publisher shall appoint a Grievance Redressal Officer based in India who must be resident in India, and monthly compliance reports will have to be filed by social media platforms. The officer shall take decision on every grievance received by it within 15 days.
- Level-II: Self-regulation by the self-regulating bodies of the publishers – There may be one or more self-regulatory bodies of publishers. Such a body shall be headed by a retired judge of the Supreme Court, a High Court or independent eminent person and have not more than six members. Such a body will have to register with the Ministry of Information and Broadcasting. This body will oversee the adherence by the publisher to the Code of Ethics and address grievances that have not be been resolved by the publisher within 15 days.
- Level-III: Oversight mechanism – Oversight Mechanism: Ministry of Information and Broadcasting shall formulate an oversight mechanism. It shall publish a charter for self-regulating bodies, including Codes of Practices. It shall establish an Inter-Departmental Committee for hearing grievances. The rules have been notified under Section 87 of the Information Technology Act.
Also, social media platforms will be required to disclose the first originator of any “mischievous” information, whether it is a tweet or message as the case may be. This should be in relation to the sovereignty of India, the security of the state, relations with foreign states, rape etc,” the minister added.
Publishers of news on digital media will 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.
Twitter found itself in a standoff with the government earlier this month when it refused to fully comply with a government order to remove some accounts, including those of news organisations, journalists, activists and politicians, citing its “principles of defending protected speech and freedom of expression.”
It was however not immediately clear if this would mean messaging platforms like WhatsApp, Telegram and others would have to crack end-to-end encryption in India in order to comply.
The new regulations are to take effect within three months. They also will apply to digital streaming platforms like Netflix and Amazon Prime, which will have to set a “classification rating” to describe the content on their platforms.
Publishers will have to prominently display the classification rating specific to each content or program together with a content descriptor informing the user about the nature of the content (U/A 13+ or higher, and reliable age-verification mechanisms for content classified as ‘A’).
Opinions are however divided on the new guidelines
A Nasscom statement states, “Technology is becoming all pervasive and the importance of responsible use and build of technology is imperative for all stakeholders – government, industry, start-ups and citizens. At the same time, the imperative of balancing regulation and innovation will be key as we are in a phase of accelerated technology shifts. In accordance to that the announcement aims to address many of the concern areas of grievance redressal, fake news, online safety and parity with existing laws.”
“The government has emphasised that the new rules will not curb creativity and freedom of speech and expression of the citizens. We would urge the government to ensure that this is the design principle as these guidelines are implemented. The call for responsible freedom and ensuring that no information or data is misleading is key for a diverse democracy like India to curb the widespread issue of fake news,” said the statement.
However, Nasscom has also said that while some of these recommendations have been accepted, it will work with members to study in detail the implications of these guidelines and request for consultative discussions on implementation and clarifications.
Commenting on the new rules by the government, Kritika Agarwal Associate Partner Majmudar & Partners, International Lawyers, India, “The new rules supersede the existing guidelines for intermediaries and propose to regulate intermediaries, social media intermediaries, digital or online news channels and OTT portals. These rules will apply to digital media and OTT portals that may not be operating in India but whose services are accessible in India and are targeted to the Indian audience.”
“It is good that the government has introduced a 3-level supervision mechanism as an OTT platform will be able to classify its content and address any complaints on the content on its own rather than being subject to a censor board. Therefore, the rules promote self-regulation of digital media and OTT platforms whilst establishing a code of ethics that will have to be complied with,” she added.
Karan Taurani, an analyst at Elara Capital Ltd, tweeted that the move will lead to a consolidation in the OTT industry or shutdown of niche apps that rely on adult content but will augur well for large global giants and broadcaster-led OTTs.
IAMAI however expressed “surprise” that the government did not consult the stakeholders while drafting any such guidelines. The association said: “Unfortunately, as things stand, as a responsible industry body and an ardent supporter of all Government policies and regulations, IAMAI is surprised to be not consulted on the draft guidelines for OCCPs that are being quoted in the media.”
“Also, apart from the 17 OCC platforms that are signatories to IAMAI’s Universal Self-Regulation Code, there are producers, actors and other stakeholders who too should have been consulted before the guidelines are published. We firmly believe that regulations arrived at through wide stakeholder consultations are much more effective and more easily implementable,” the statement said.
An industry source associated with a streaming platform told PTI that they are looking forward to the discussions that the ministry would undertake. “We are looking forward to engaging with the ministry and come up with a code that is acceptable to the consumers, the streaming platforms and the government,” the source said.
As there may be several rounds of talks in the pipeline, we need to see how the government balances creative freedom with a viable regulatory code in the subsequent events.