Dissecting the new rules for social media and OTT

Last week IT  Minister Ravi Shankar Prasad and I&B Minister Prakash Javadekar released the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021 at a press conference in New Delhi. Although the government had raised the issue in 2018, work on issuing the new rules for social media and OTT platforms gained acceleration after the spat between IT ministry and Twitter over removal of certain accounts affiliated with farm protests to which Twitter disagreed.  

What is the regulation about? 

A three-level grievance redressal mechanism has been established under the rules with different levels of self-regulation.

  • Level-I: Self-regulation by the publishers;
  • Level-II: Self-regulation by the self-regulating bodies of the publishers;
  • Level-III: Oversight mechanism.
  • Self-regulation by the Publisher: Publisher shall appoint a Grievance Redressal Officer based in India who shall be responsible for the redressal of grievances received by it. The officer shall take decision on every grievance received by it within 15 days.
  • Self-Regulatory Body: 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 been resolved by the publisher within 15 days.
  • 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. 

What’s for the users?

The Rules seek to empower the users by mandating the intermediaries to establish a grievance redressal mechanism for receiving,  resolving complaints from the users or victims. In order to ensure online safety and dignity of users intermediaries have been directed to remove or disable access within 24 hours the contents that expose the private areas of individuals, show such individuals in full or partial nudity or in sexual acts or is in the nature of impersonation including morphed images etc. Such a complaint can be filed either by the individual or by any other person on his/her behalf.

In cases where significant social media intermediaries remove or disable access to any information on their own accord, then a prior intimation for the same shall be communicated to the user who has shared that information with a notice explaining the grounds and reasons for such action. Users shall be provided an adequate and reasonable opportunity to dispute the action taken by the intermediary. Users who wish to verify their accounts voluntarily shall be provided an appropriate mechanism to verify their accounts and provided with demonstrable and visible marks of verification. 

How will the intermediaries be affected? 

 The Rules make a distinction between social media intermediaries and significant social media intermediaries. This distinction is based on the number of users on the social media platform. Additional Due Diligence has to be followed by significant social media intermediary like appointment of a Chief Compliance, Nodal Contact Person for 24×7 coordination with law enforcement agencies and Resident Grievance. 

 Significant social media intermediaries must publish a monthly compliance report mentioning the details of complaints received and action taken on the complaints as well as details of contents removed proactively by the significant social media intermediary. Significant social media intermediaries providing services primarily in the nature of messaging shall enable identification of the first originator of the information that is required only for the purposes of prevention, detection, investigation, prosecution or punishment of an offence related to sovereignty and integrity of India, the security of the State, friendly relations with foreign States, or public order or of incitement to an offence relating to the above or in relation with rape, sexually explicit material or child sexual abuse material punishable with imprisonment for a term of not less than five years. Intermediary shall not be required to disclose the contents of any message or any other information to the first originator.

 Concerns and Criticisms

Experts have pointed out various vague elements and loosely defined terms like  ‘mysterious messages’ that are arbitrary and can be interpreted in various ways depending on the intention of the interpreter. Legally, the terms should be deciphered as per the case by the judges of courts however here the government has entitled an officer appointed by itself for the ‘Oversight Mechanism’ to take the onus. The legal training of such an officer is no mandate and thus makes ‘the opinion based’ decision questionable.    

The government claims to have come up with the law after proper consultations in Delhi, Mumbai and Chennai over the last one and half years wherein OTT players have been urged to develop “self-regulatory mechanism”. However, the Internet  and  Mobile association, an organisation that oversees OTT platforms all across India said they were dismayed that the government had not consulted them. Another news media organization  ‘Medianama’ claims their representative wasn’t let in the meeting at Bombay, ironically for the reason that the person was a journalist.

According to the new law in case of breach, the first person who shared the offensive content will be ‘traced’. In order to do this, the intermediaries will have to break their end to end encryption affecting the construct of the platform. Firstly, it is difficult to guess how many platforms will agree to invest in it and secondly, it is a violation of Right to Privacy as well. Moreover, we don’t have a standalone data protection law which makes the data vigilance questionable as well.

The government argues that there were many court proceedings in the Supreme Court and High Courts, where courts also urged the Government to take suitable measures. However, the suggestions made were about ‘Regulatory bodies’ which function independently and here in the three-tier system ‘An Oversight Mechanism’ includes an officer appointed by the government as the ‘Authorised officer’ for the purpose of issuing directions. It’s hard to overlook this step as censorship in disguise especially when numerous times in the past the government has misinterpreted dissent as sedition. Most recent was the Disha Ravi vs Union of India case.

Moreover, as per the law the intergovernmental committee will decide what kind of content by press, the fourth pillar is questionable. This stands against the constitutional separation of powers of executive, judiciary and press that  is the watchdog of democracy.

A major loophole in the law is its challenging enforcement on foreign players who may refuse to abide by the law due to lack of resources or absence of will.  This would probably lead to a Breach of observance of these kinds of laws rather than compliance. Thus, adding The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021in the pile of other failed laws that lacked proper implementation.

To read the Information Technology (Guidelines For Intermediaries And Digital Media Ethics Code) Rules, 2021 click here.

Vandana Bansal is a journalism and mass communication student from New Delhi.