On 25 February 2021, the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (the Rules) were notified in the official gazette. While the basic structure of the Rules aligns with that discussed in a previous article on our blog previewing the Rules (available here), a detailed analysis of the Rules opens the door to a whole new set of questions and nuances that were previously untouched. In this article, I’ll be discussing some of the key changes to the digital media and online intermediary regime proposed by the Rules, and delving into certain questions surrounding the legality of the Rules. For ease of reference, I’ll be structuring this article as follows: Part I will discuss the distinction drawn between intermediaries and significant social media intermediaries and additional compliances imposed upon the latter, Part II will delve into the compliance framework introduced vis-à-vis OTT and digital media platforms, Part III will capture preliminary observations in relation to the Rules and finally, Part IV will comment briefly upon the constitutionality of the Rules.
I. Intermediaries and Significant Social Media Intermediaries
Notably however, the Rules create a subset of social media intermediaries, termed as ‘significant social media intermediaries‘, which are social media intermediaries with 50 lakh, or more, registered users. Rule 4 places additional requirements on significant social media intermediaries, such as inter alia appointment of a Chief Compliance Officer, a nodal person of contact as well as a Grievance Redressal Officer, enabling identification of the first originator of information if required by an order of a competent authority, and enabling voluntary verification of users through appropriate mechanisms (for e.g. through a user’s active Indian mobile number).
Rule 6 also empowers the Ministry of Electronics and Information Technology (MEITY) to require an intermediary, which is not a significant social media intermediary, to comply with or any of the requirements laid down under Rule 4 and discussed above, if the services of said intermediary permit publication or transmission of information that may create a ‘material risk of harm‘ to the sovereignty of India, security of state, friendly relations with foreign countries or public order.
II. OTT and Digital Media Platforms
‘Publishers of news and current affairs content’ and ‘publishers of online curated content’ have also been brought under the purview of the Rules. As per Rules 2(t) and 2(u), these entities are defined as follows:
- ‘Publisher of news and current affairs content’ means an online paper, news portal, news aggregator, news agency and such other entity called by whatever name, which is functionally similar to publishers of news and current affairs content but shall not include newspapers, replica e-papers of the newspaper and any individual or user who is not transmitting content in the course of systematic business, professional or commercial activity;
- ‘Publisher of online curated content’ means a publisher who, performing a significant role in determining the online curated content being made available, makes available to users a computer resource that enables such users to access online curated content over the internet or computer networks, and such other entity called by whatever name, which is functionally similar to publishers of online curated content but does not include any individual or user who is not transmitting online curated content in the course of systematic business, professional or commercial activity.
Entities falling within the ambit of the aforementioned definitions (which are bound to be numerous, given the broad nature of these definitions) are supposed to comply with the Code of Ethics (the Code) laid down under the Rules. The Code requires inter alia self-classification of content by publishers of online curated content, on the basis of context, tone and impact, the targeted audience, etc. and to restrict access to content based on such classifications. To elucidate, online curated content which is suitable for all age groups will be classified as “U”, whereas content which needs to be restricted to adults will be classified as “A” (there are also “U/A 7+”, “U/A 13+” and “U/A 16+” content classifications). Further, the aforementioned publishers are required to disclose grievances received by them from the public and submit monthly compliance reports in relation to the same. Finally, compliance with the Code is to be regulated via a three-tier mechanism, involving self-regulation and a governmental oversight mechanism.
III. Key Observations
Blocking powers and suo motu powers of the Ministry: Rule 14 entails the constitution of an Inter-Departmental Committee (the Committee), whose main purpose is to meet periodically, hear complaints regarding violations of the Code and recommend suitable action to be taken by the Ministry (which, for the purposes of Part III of the Rules (under which Rule 14 falls) is the Ministry of Information and Broadcasting (MIB)). Notably, pursuant to Rule 14 and based on the recommendations of the Committee, the Ministry has been empowered to block access to certain content in accordance with Section 69A of the Information Technology Act, 2000 (the Act). Similar provision has been made under Rule 16, which empowers the Ministry to pass interim orders blocking content / information ‘in any case of emergency nature‘.
The blocking powers conferred upon the Ministry go beyond the ambit of administrative regulation envisaged under the Rules, and rather, they confer judicial powers upon the Ministry. Furthermore, Rule 14 is drafted in a manner which could lead to excessive suo motu censorship by the Ministry – as Rule 14(2)(b) allows the Committee to hear complaints ‘referred to it by the Ministry‘, before eventually recommending action on such complaints by the Ministry.
Complaints mechanism: Intermediaries and publishers of online curated content / news content are required to appoint grievance officers, who are supposed to resolve grievances received by them within a 15-day period. Expecting such swift action from a grievance officer however seems rather onerous, given the plethora of grievances or complaints that are likely to arise in relation to content published on these digital media platforms or content hosted by intermediaries. This is further compounded by the fact that the Rules do not in any manner deter lodging of frivolous or baseless grievances or even provide for a limitation period vis-a-vis grievances. While the right of members of the public to file grievances against content / information is essential in a democratic society, the Rules fail to draw the line between reasonable and arbitrary exercising of this right – be it through an effective deterrence mechanism for vexatious complaints or through provision of a more practical timeline for resolution of grievances. It is also pertinent to note that Rule 12 provides for formation of one or more self-regulating bodies of publishers to be formed without deliberating on whether a complaint can be filed only before a self-regulating body of which the concerned publisher is a member or would it be open for complaints on the same content to be filed before different self-regulating bodies thereby leaving room for conflicting decisions being passed for the same content. For instance, in the recent Tandav controversy, if conflicting decisions on the controversial scenes would have been passed by two separate self-regulating bodies, which decision would prevail? Further, there is no embargo on member of the publisher being a part of the self-regulating body which could result in conflict of interest situation.
Pro-active identification of harmful information: Rule 4(4) requires significant social media intermediaries to deploy ‘technology-based measures‘ to proactively identify and monitor content / information that in any form depicts rape, child sexual abuse or other information that has been previously removed. Arguably, requiring such active monitoring by intermediaries impinges upon the safe harbour protection provided to intermediaries up till now[i] – whereby intermediaries’ liability kicks in only upon receiving actual knowledge of content / information that is harmful or illegal.
The constitutionality of the Rules is likely to be challenged on a plethora of legal grounds, be it the broad contention that the Rules are ultra vires the Act (the parent legislation pursuant to which the Rules were promulgated) or challenges to specific provisions under the Rules, as explained below.
Coming to the former contention raised above, the Rules may be deemed to be ultra vires the Act insofar as regulation of digital media is not covered under the Act and falls beyond the rule-making powers conferred upon the MEITY under the Act and pursuant to the Allocation of Business Rules, 1961. Notably, regulation of digital media was recently included within the ambit of the MIB. While the Rules take cognizance of this development, by conferring administrative powers in relation to Part III of the Rules (pertaining to digital media platforms) upon the MIB, this cannot justify what appears to be a clear instance of executive overreach. Simply put, though the power to regulate digital media lies with the MIB, such regulation would require, at the first instance, the promulgation of a legislation covering digital media and curators / publishers of digital media content.
As mentioned above, the Rules possibly present a series of micro-level infractions as well. For instance, identification of the first originator of information, as envisaged under Rule 4, would necessarily involve breaking of the end-to-end encryption provided by intermediaries as a means to safeguard users’ fundamental right to privacy, enshrined under Article 21 of the Constitution. While this may be permissible and even necessary in certain extreme instances (where, for example, the originator sought to be identified has published information that actually poses high-level national security risks), there is excessive discretion placed upon the executive body to pass such orders and impinge upon a user’s right to privacy (as a ‘tracing order’ can even be passed to maintain ‘public order’, which is broad enough to include even minor offences or slightly offensive content). Further, as pointed out above, Rule 16 provides for emergency blocking powers to be exercised by the MIB, whereby directions for blocking of online content may be passed even without giving the concerned person / entity an opportunity of hearing. Granted, the Rules prescribe such powers are to only be utilized in cases of emergency nature; however, in the absence of clear guidance under the Rules as to what constitutes an ’emergency’ (other than vaguely stating that it is those cases ‘for which no delay is acceptable‘), what’s to prevent the nodal ministry from abusing these blocking powers and unduly infringing the fundamental right to freedom of expression and free speech, as laid down under Article 19(1)(a). The incorporation of such broad and mostly vaguely-worded powers is definitely a cause for concern vis-a-vis freedom of speech and expression on the internet and the right to privacy of online users, and should provide sufficient grounds to challenge the Rules. Further, Level II of the self-regulation mechanism for publishers under Rule 12, makes it necessary for them to be members of an association thereby violating Article 19(1)(c) of the Constitution which necessarily implies a right not to form or join an association. Finally, the absence of an express appeal mechanism, for publishers / intermediaries to challenge orders passed by the relevant governmental body, is a glaring omission in the Rules as well.
As outlined above, the Rules have overhauled the framework for intermediaries under Indian law, while also adding a regulatory framework for content posted on and published by OTT platforms and online news media platforms. The manner in which the Rules have been drafted portends an attempt to usher in a new era of internet censorship and regulation of speech and expression online. While no one is claiming that online content must be exempted from censorship or regulation altogether, the Rules have seemingly gone a step too far and shunned inter alia well-established standards of proportionality and reasonable restrictions which come into play upon impingement of fundamental rights of privacy and freedom of expression. It is absurd that such restrictive regulations and three tier scrutinization process is absent for the television broadcasting industry but made applicable for the OTT sector where content is narrow casted and “pull” based curated content is provided which is at the absolute discretion of the viewer to watch. Not to mention the operational and financial impact upon certain entities falling under the ambit of the Rules, such as significant social media intermediaries, which will definitely struggle to adapt to this onerous regulatory framework. Unsurprisingly, social media giants, such as Facebook, are deliberating upon challenging the legality of the Rules. The importance of judicial determination of such challenges to the constitutionality and validity of the Rules cannot be understated, as it shall shape online speech and expression in India for years to come.
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