Key changes of the new IT Rules 2021
The Rules will have a fundamental impact on how the Internet and Internet-based companies function in India
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It has been some time since the last newsletter and there have been many new changes in the Legal Sector. One of the major and most controversial changes brought in recently is - The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021. [Read]
Oh! Where to even start? Just too many things *theatrically heavy sigh*.
Anywayy, let’s begin.
A little History -
The new rules have been in the works since 2018. They have come in a few weeks after Twitter declined to comply with some of New Delhi’s orders [Read] amid a protest by farmers in the capital city. The government said at the time that Twitter couldn’t act as the judge or justify non-compliance. [Read]
So, What’s new?
According to the information released by The Press Information Bureau, there are 53 Crore WhatsApp users in India, 44.8 Crore users of YouTube, 41 Crore of Facebook and there are 21 Crore as well as 1.75 Crore, Instagram, and Twitter users, respectively. [Read]
The Lockdown and corona phase in India highlighted the stark reality that these platforms are no longer just an entertainment source for Indians. They have now evolved into a platform that people highly use for Trade, Commerce, Transmission of information, and to Freely express their views as well as opinions. The Indian government believes that social media companies need to be accountable and thus they have introduced the new Rules.
These Rules will have a fundamental impact on how the Internet and Internet-based companies function in India. Everything, starting from online news, streaming content on platforms like Netflix and social media companies will now be more tightly regulated.
The Rules can be broadly divided into three areas -
(i) Internet and Social media Intermediaries
(ii) Digital News
(iii) OTT Streaming Services
(i) Internet and Social media Intermediaries
The first of the three big changes is the regulation of the Intermediaries.
So, Intermediaries are the platforms that provide a medium to people to give out content. There are two categories here -
Social Media Intermediary (SMI)
Significant Social Media Intermediary (SSMI)
Once a platform crosses a specific number of users, it would be called SSMI. This number has not been disclosed yet. For example, Twitter would be a significant social media Intermediary that, you and I would be using to write our opinions on.
Let’s look at new changes brought in -
First originator - SSMI would have to disclose the first person who would have started a particular message if it is asked by a Judicial order. The Rules say that the intermediaries would not be asked to disclose the content of the message.
However, keeping in mind, that the world is moving towards technologies such as end-to-end encryption, would this not make communications on services like Signal and WhatsApp more vulnerable and less safe?
Also, the rules state that if a particular message originated in America, but in India ‘Apoorva’ was the first person to forward it, then I will be prosecuted as an originator.
Removal of Content within 36 hours - If an Intermediary receives a court order or from ‘an appropriate government agency’ under Section 79 of the IT Act then they have to disable access to the information in under 36 hours.
Provide Information within 72 hours - If an Intermediary receives a lawful order to provide information for verification of identity, or assist any government agency for crime prevention and investigation, then they have to provide it within 72 hours.
So, there will be a massive addition to the workload and expense of these Digital Platforms.
Voluntary Takedowns - *All* Intermediaries will have to take down content that
Violates any law
Is defamatory or obscene
Is Pornographic or paedophilic
Causes invasion of Privacy
Is insulting or harassing on gender
Or otherwise inconsistent with or contrary to the laws of India.
(ii) Digital News
Digital news publishers will now have to notify the government of their operations, set up self-regulatory organizations, and apply a constraints redressal mechanism, as well as follow codes that have only been applicable to print and TV news so far.
This is the first time in the history of India that the content of Digital news platforms will be regulated. This comprises of platforms like comprises Alt News, Article 14, Boomlive, Cobrapost, HW News, Newsclick, Newslaundry, Scroll.in, News Minute, The Quint, The Wire, etc. After implementation, they will be at the risk of actions like blocking and content removal if they do not comply with government orders that seek to regulate them.
Online new publications will have to comply with the:
Norms of Journalistic Conduct of the Press Council of India under the Press Council Act, 1978, and
Programme Code under Section 5 of the Cable Television Networks Regulation) Act, 1995 [Reference]
The new Rules prescribe a three-tier structure for regulation -
LEVEL 1 - At publisher level:
*Anyone* can approach the publisher with a complaint, for which he has to set up a redressal mechanism and appoint an officer who will have to take a decision within 15 days.
LEVEL 2 - At the Self-Regulatory Organization level:
Digital news companies will have to form a self-regulatory organization, which will have to register with the government. This SRO can issue warnings, censure, reprimand a company, require them to issue an apology or warning card.
LEVEL 3 - Government oversight by I&B Ministry:
There will be an interdepartmental committee created at this level that would be issuing guidelines, advisories, and orders and directions for adherence to the code. The committee can make recommendations to the ministry around-
a. Warning, censuring, reprimanding a publisher, requiring a publisher to issue an apology, warning card, or disclaimer;
b. Deleting or modifying content to prevent the occurrence of a serious offense.
c. Taking action under Section 69A of the IT Act which is about the right of Central Government to block public access of any information through any computer resource in the interest of sovereignty and integrity of India, defense of India, and security of the State.
What’s the problem?
Go back to the first word of LEVEL 1 … *ANYONE*
From now on if ANYONE has a problem with what a digital news platform has published they can go and complain to the platform. But if they are not happy with the Platform’s response or if the platform does not respond in the stipulated time, they can go all the way up to the government or more specifically a brand new government oversight committee which will then seek to censor information as deemed necessary.
At the end of the day, it is the government deciding - What should and should not be accessible to the public!? Moreover, India has 1.38 Billion people and it is one of the most religiously and ethnically diverse nations in the world. It is practically impossible to create content without some or the other person’s sentiments getting hurt.
Secondly, there is vague criteria surrounding what constitutes as ‘unlawful’. Now digital platforms have to comply with a certain code and ensure that they don’t publish unlawful content. But, what is considered unlawful? That criteria of obscene or provocative or seditious is so vague that these digital news platforms will start censoring themselves so that they don’t fall into any of them.
Now, this is a problem!
The Rules are technically not taking away your freedom. However, the reporters will start restricting their words and filtering the content from the fear of any possible actions against them.
This would affect their freedom of speech and even our (as citizens) right to access information!
Live Law News Media had filed a writ petition challenging the constitutional validity of the new Rules, as they are imposing "arbitrary, vague, disproportionate and unreasonable" restrictions on digital news media and social media intermediaries.
They also challenged them to be illegal and violative of Articles13,14, 19(1)(a), 19(1)(g), and 21 of the Constitution of India and also ultra vires of the Parent Act, the Information Technology Act. [Read]
Responding to the center’s question of “ How can it get better than this? (the three-tier system), Advocate Santhosh Mathew replied -
“…the 'self-regulatory body' under the Rules is "at the mercy of the Central Government". The irony is they call it ‘self-regulatory’ …”
(iii) OTT Streaming Services
India’s Ministry of Information and Broadcasting, which oversees programs beamed on television and screened in theatres in the country, will now also regulate policies for streaming platforms and digital news outlets in a move that is widely believed to kickstart an era of more frequent and stricter censorship on what online services air. ‘
For instance, the Ministry of Information and Broadcasting currently certifies which movies hit theatres in the country and the scenes they need to clip or alter to receive those certifications. But movies and shows appearing on services like Netflix and Amazon Prime Video did not require certification and had wider tolerance for sensitive subjects.
For streaming platforms, the rules have outlined almost the same three-tier structure for “observance and adherence to the code” as that to be followed by the digital News platforms. Until now, on-demand services such as Netflix, Disney+ Hotstar, and MX Player have operated in India without having to censor much of their catalogs.
Let’s look at the news changes introduced:
Content Classification - Content needs to be classified into the following categories -
U (Suitable everyone)
U/A 7+
U/A 13+
U/A 16+ and
A (restricted to adults)
The content shall be classified on the basis of
Themes and messages ( eg Drug misuse, pedophilia, and racial and communal hatred are “unlikely to be appropriate” for a younger audience)
Violence (The extent and nature of violence shall determine the maturity of classification)
Nudity (Adult nudity with sexual content can only be portrayed at A rating)
Sex ( The code implies that implicit and explicit sexual content can only be included in U/A 16+ and A categories)
Language ( Bad language increases the age rating)
Drug and substance abuse (Content portraying and promoting misuse is likely to be approved for an older audience)
Imitable behavior (Behaviors that children might try to imitate especially criminal or violent behavior like bullying, violence, eve-teasing etc are likely to be rated for an older audience)
No streaming service shall put out content that violates the law as it stands at any given point in time.
Streaming services must exercise “due caution and discretion” with respect to content that -
affects sovereignty and integrity of India
threatens, endangers, or jeopardizes the security of the nation
detrimental to India’s friendly relations with foreign countries
likely to incite violence or disturb the maintenance of Public order
features activities, beliefs, practices, or views of any radical or religious groups.
Blocking/censorship orders - The I&B Ministry will appoint an Authorized Officer, who will head the Level III committee. If Level II and Level III committee feels that content has to be censored or removed because it is illegal or harms public order, this recommendation gets passed up to the Authorized Officer, who can direct either the government or the publisher to censor or delete the content.
Emergency Blocking - The I&B Ministry can at any time issue an emergency blocking order for content under Section 69A(1) of the IT Act.
Applicability - These rules apply to curated content providers like Netflix, Amazon Prime Video, and Hotstar, and also to curated sections of otherwise user—generated platforms like YouTube Originals and Facebook Watch.
Amidst all this, please remember that this is private viewing, and the govt has no business, and a stated intent to not control what we watch privately. Streaming services want to avoid lawsuits, so will probably allow a code.
Who suffers? User choice. Because no one is standing up for user rights here.
I was hesitant to use the comparison but in Nikhil Pahwa’s words - "Like China, the control is exercised through “self-regulatory mechanisms” or “guidelines” put in place for platforms and services, but the penalties are such that our freedoms will be impacted.”
For real, we are the generation to have watched Game of Thrones and look beyond the nudity and appreciate it for its creative brilliance! We love David from Schitt’s Creek and do not appreciate any kind of censorship when it comes to gay intimacy.
Lastly, I will end with this brilliant thread By Nikhil Pahwa stating reasons as to why OTT platform regulation is wrong -
PS: Huge shoutout to the Internet freedom Foundation, they are doing amazing work to ensure that technology respects the fundamental rights of the citizens of India!
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