This Blog is authored by Raj Bhojani , pursuing 4th year BBA.LLB from Alliance University , during his internship with NitiNyaya Law Offices
Digital media has played an important role over some time in India. The widespread use of the internet has helped social media and digital media exponentially. To regulate these social media intermediaries like Twitter, Facebook, and Instagram, other OTT platforms like Netflix, Amazon Prime, and Hotstar the central government announced the INFORMATION TECHNOLOGY (GUIDELINES FOR INTERMEDIARIES AND DIGITAL MEDIA ETHICS CODE) RULES, 2021.
The Supreme Court of India in November 2018 had taken up a suo moto writ petition and ordered the government to take necessary measures to eliminate and frame guidelines for application and social media which contain gangrape imageries, rape, and child porn. Subsequently, in 2019 the Supreme Court of India had asked the central government to notify the new IT Rules. Even in 2018, Calling for Attention Motion on misuse of these social media platforms for spreading fake news was called upon. There was a need to regulate such platforms and make them accountable under the law. The ad-hoc committee of Rajya Sabha in March 2020 submitted a report that there should be an identification of the first originator concerning pornography on social media. Therefore, in light of these points, the government announced the new IT Rules of 2021 regulating OTT Platforms and Social Media platforms.
Regulation of Social Media by Ministry of Information and Technology.
Under the new rules, the social media platforms have to follow due diligence standards set by the new rules. The social media intermediaries are required to set up a grievance redressal mechanism. They need to appoint an officer who can take complaints of the victims. The name and details of the officers have to be shared with the government. Such an officer shall acknowledge the complaint of any victim within 24 hours and resolve the dispute within 15 days of the complaint. Now, the intermediaries need to remove content from their platform within 24 hours which exposes private parts of an individual and any kind of partial or full nudity. Complaints concerning such content can be made by the victim or any other person who comes across such content.
The central government has made a distinction between social media intermediaries and significant social media intermediaries under the new rules. The applications which fall within the significant social media intermediaries have to follow extra compliance. The threshold for significant social media intermediaries is set at 50 lakhs registered users in India.
What has to be complied with by a significant social media intermediary?
- Appointment Chief Compliance Officer who makes sure that all the rules and regulations of the act are being complied with. He has to be a resident of India.
- Appointment of Nodal Contact person who is in contact with the law enforcement agencies 24×7. He has to be a resident of India.
- Appointment of Resident Grievance Officer who ensures the compliance of the Grievance Redressal Mechanism. He has to be a resident of India.
- Monthly Report of complaints received, action taken by the intermediary, and the contents removed from the platform.
- The intermediary has to provide services to identify the first originator of the content in the platform for prevention, investigation, prosecution, and detection for the punishment of offense against the sovereignty and integrity of India.
- The intermediary shall have its public address in India and it should be published on websites and mobile applications.
- Adequate and reasonable grounds should be convened to the user for removing any content from their social media accounts.
All the new rules framed by the central government will come into effect on the day it is notified in the official gazette. The rules relating to significant social media intermediaries will come into effect after 3 months of the publication of rules in the official gazette.
Regulation of OTT Platforms by Ministry of Information and Technology.
The Ministry of Information and Technology had consulted the OTT platforms in Mumbai, Delhi, and Chennai and had asked them to develop a self-regulatory mechanism. The government also studied various regulations of these OTT platforms in Singapore, Australia, the EU, and the UK.
The central government under section 87 of the Information Technology Act, 2000 notified the rules for regulation OTT platforms, digital media, and news publishers. The new rules require self-regulation, a Code of Ethics, and a three-tier grievance redressal mechanism.
Like the due diligence that has to be followed by social media intermediaries, OTT platforms digital media, and news publishers have to follow the code of ethics prescribed under the new rules. The platforms would now have to classify the content into 5 categories i.e., U (Universal), U/A 7+, U/A 13+, U/A 16+, and A (Adult). The platforms will have to provide a parental lock for contents classified as U/A 13+ or higher. They will have to develop a mechanism for age verification for content classified as A. The platforms will have to give a disclaimer to the content, a classification under which it falls to enable the user to make a prior and informed decision. Such platforms will now have to follow the Norms of Journalistic Conduct of the Press Council of India and the Programme Code under the Cable Television Networks Regulation Act.
What is the three-tier system?
- Self-Regulation by Publisher: Like the social media intermediaries, the platforms will have to appoint a Grievance Redressal Officer who shall be a resident of India. Such an officer will have to resolve the complaints within 15 days of the complaint made.
- Self-Regulatory Body: A publisher may have more than one regulatory body. Such body shall be headed by a retired judge of the Supreme Court or any other imminent person which shall not exceed 6 members. The body will have to be registered with the Ministry of Information and Technology. The body shall ensure compliance with the Code of Ethics and take up complaints that are not resolved within 15 days by the Grievance Redressal Officer.
- Oversight Mechanism: Under the new rules, the government is allowed to develop an oversight mechanism and publish charters like a code of ethics. The government is allowed to develop an inter-departmental committee for grievance redressal.
Though some parts of the rules might help in addressing the issue related to child porn, nudity, and obscenity, the new rules regulating social media intermediaries and digital platforms try to bring in centralized regulation. The new rules notified by the government put a lot of pressure on the platforms and violated the freedom of free speech envisaged under Article 19 of the Indian Constitution. Online platforms and digital media are already facing a huge amount of defamation and criminal cases against them within the ‘reasonable restriction’ clause of Article 19. The new rules might give the government the right to put a stop to free speech and put an end to freedom of the press. As a result, there is a chance that such rules might be used by the government as a weapon against free speech but the concern shall only be answered after the new rules are enforced by the government.