The Ministry of Electronics and Information Technology and the Ministry of Information and Broadcasting notified new rules titled “Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021”, to regulate social media, Over-The-Top platforms, and digital news on the 25th of February 2021.With regard to OTT platforms or curated content, the Government in its press release has expressed the view that there have been widespread concerns about issues relating to content, certification and the need for regulation of content disseminated through these platforms, given the several Public Interest Litigations and other cases that has been filed against the OTT platforms before the High Courts as well as the Supreme Court of India.
Under the regulations, digital news organizations and OTT platforms will now have to follow the same content guidelines meant for Television and print media. In addition to this, digital media and OTT platforms will also have to set up a grievance redressal mechanism to decide on complaints over the content.
According to the rules, OTT platforms must classify their content into five age-based categories, i.e., U (Universal), U/A 7+, U/A 13+, U/A 16+, and A (Adult); and implement parental locks for content classified as U/A 13+ or higher, and reliable age verification mechanisms for content classified as “A”. Additionally, the rules also mandate that the platforms create other access control mechanisms and prominently display the classification rating specific to each content or programme; together with a description on the content notifying the user about the nature of the content.
The classification of content into different age categories is not a new regulatory process. The Cinematographic Act of 1952 also has a similar classification in order to regulate viewers. However, content classification on the basis of the subject of the content would pose a significant challenge, as such classification would be dependent upon how the concerned person or authority of the specific OTT platform treats it to be.
Additionally, the new rules also require the platforms to establish a three-tier grievance redressal system which includes self-regulation by publishers, a self-regulating body headed by a retired Supreme Court or high court judge and an inter-ministerial committee. The three-tier grievance redressal system is to be managed as follows:
- OTT provider level where each complaint will have to be addressed within a maximum of 15 days.
- Self Regulatory Body – If the complainant is unsatisfied with the addressal of the complaint at the first level, then he or she can take the matter to a self-regulatory body collectively established by OTT platforms, which is the second level. This body is to be headed by a retired judge of the Supreme Court, a High Court, or an independent eminent person from the field of media, broadcasting, entertainment, child rights, human rights, or other applicable fields. This self-regulatory body also has the power to censor content in case of any incriminating content.
- The Government – The government has also been given powers as an “oversight mechanism”, which will be the function of an inter-ministerial committee, and this committee will essentially have the same powers as the self-regulatory body. The action taken against OTT platforms could be in the form of a warning or reprimand to the platforms, or a direction given to it to delete or block the content in question.
One concern with the grievance redressal mechanism is that the rules do not provide for the grounds on which complaints can be made. This is probably because of the diversity with respect to the content as well as the understanding or sensitivity of each viewer. Due to the presence of such diversity, there is a possibility of a large number of complaints.
In addition to all the above-mentioned regulations, the rules also provide that the Information and Broadcasting secretary also has the power to block public access to certain content in case of an emergency. The rules state, “in case of emergency nature” the Secretary, Ministry of Information and Broadcasting may, “if he is satisfied that it is necessary or expedient and justifiable” give orders to block public access of any information. The rules state that he or she has to record the reason for doing so in writing and it will be an interim measure. However, these orders can be released without giving the platform an opportunity of hearing. Even though the intention of the regulations is to regulate content and to empower viewers to make more informed choices, the regulations at some point seem to be arbitrary. For example, the I&B Secretary can make an order without giving the platform an opportunity for hearing.
Until recently, the content on OTT platforms was not regulated in India. The massive growth of these platforms has also brought with it numerous controversies and litigations alleging obscenity, defamation and claims of content hurting religious sentiments.
In addition to the regulations placed on OTT platforms, a distinct set of guidelines was also declared for online intermediaries, which includes social media intermediaries. The rules also mandate the online intermediaries to establish a grievance redressal mechanism to resolve complaints from the users or victims. The intermediaries are required to appoint a ‘Grievance Officer’ to address and resolve such complaints. The Grievance Officer should acknowledge the complaint within 24 hours and resolve it within 15 days from its receipt.
The rules states that intermediaries shall remove or disable access to the content that exposes the private parts of individuals, including women, show such individuals in full or partial nudity or in sexual acts or impersonation, including morphed images, etc., within 24 hours of receipt of complaint.
The rules also make a distinction between social media intermediaries and significant social media intermediaries, on the basis of the number of users of the social media platforms. Significant social media intermediaries are required to follow additional due diligence.
The rules also specifically state that an intermediary, upon receiving actual knowledge in the form of a court order or being notified by the concerned government authority should not host or publish any information, which is prohibited under any law regarding the interest of the sovereignty and integrity of India, public order, friendly relations with foreign countries
While more clarity is always welcome, what remains to be seen is if the multiple redressal mechanisms, parallel powers to the government and emergency take down power are used effectively for genuine concerns and not a knee-jerk reaction to subjective sensibilities.
This Article has been authored by Ms. Anjana Gopinath.