Media content

Digital media content rules: exaggerated?

The rules provide for a three-level oversight mechanism to regulate OTT platforms, social media intermediaries and digital news media, which includes self-regulation, self-regulatory organization (SRO) and oversight mechanism

By Saket Shukla

The Indian government has introduced the much anticipated 2021 Information Technology Rules (Intermediate Guidelines and Code of Ethics for Digital Media) (Rules) to regulate content on different digital platforms. The rules aim to cover social media platforms, OTT platforms and digital news media. There has been a growing discourse on the regulation of content on OTT platforms given their broad reach and the courts have been proactive in handling related cases. The Supreme Court reportedly, in a case where the question of the control and regulation of OTT platforms was in dispute, noticed that the rules lacked bite. The government seems to have made it clear that its intention was to strike a balance between the absence of censorship and internal self-regulation.

What the rules mean

The rules provide for a 3-level oversight mechanism to regulate OTT platforms, social media intermediaries and digital news media, which includes self-regulation as a first step, followed by regulation through a self-regulatory body (SRO) and finally, a monitoring mechanism by an interdepartmental committee having an authorized officer of a rank not lower than that of a joint secretary (committee). The committee has extensive powers, including recommending censure, demanding apologies, issuing warnings, and removing content.

The rules also require OTT platforms and digital news media to adhere to a code of ethics, while specifically requiring OTT platforms to classify their content according to the nature and type of content.

While the new regime can be expected to find its feet over time, the rules appear to pose some initial challenges that may need to be addressed. Some of them are briefly discussed as follows.

CBFC vs Committee

The rules require that “content organized online” be classified and rated on the basis of age. This would also apply to movies released on OTT platforms as this is content curated online. Films that come out on screens are already subject to certification by the Central Board of Film Certification (CBFC), a statutory body formed under an Act of Parliament, the Cinematograph Act, 1952. If the same film is released on platforms OTT, then a complainant could challenge the content certified by the CBFC and potentially, the same content would be reviewed by the committee formed under the rules, i.e. delegated legislation. Ideally, if some content has been approved by the CBFC, then until the certification is changed, the rules would not apply to it.

Digital news media

The Rules define digital media as including “news and current affairs publishers”, which can be of different types. Broadly speaking, the categories of these publishers are: (a) print media organizations; (b) broadcasting organizations; and (c) stand-alone news portals (eg Newslaundry and ThePrint), which publish content online. Online news publishers exclude electronic newspapers and replicas of newspapers. The first category of these online news publishers is already regulated by the Self-Government Code of the Press Council of India, while the broadcasting organizations are covered by the standards of the Networks Act 1995. cable TV (regulation). these organizations should be subject to regulations under the rules simply because they publish information, as appeals under the rules would be before the committee which is made up of bureaucrats and exercise broad powers. Many of these print media and broadcasters would have the same editorial team dealing with both digital and traditional content and, in practice, additional conformities could have been avoided.

The third category of news and current affairs publishers has so far been unregulated as they do not depend on any public resource (e.g. airwaves as in the case of broadcasters) and do not require license to operate. The government’s intention to treat print and digital media alike was clear when the limit on FDI in digital news media was capped at 26%, the same as traditional media. While a foreign hand in Indian news might be moot, it is doubtful that a simple restriction on foreign investment will serve the purpose in a hyper-connected digital world where the physical registration of digital businesses is not without. object. If the intention is to treat news portals on an equal footing with the print media sector, then instead of subjecting the latter to bureaucratic oversight under the rules, both could have been spared this additional monitoring.

Notably, the rules were developed under the provisions of the Information Technology Act 2000 in the exercise of central government powers to establish a procedure for blocking by an intermediary or a government body from access to the public to certain information and the guidelines to be followed by intermediaries. At first glance, an online news entity may not be considered an intermediary, that is, a person who, on behalf of another person, receives, stores or transmits electronic records or provides a service. in connection with these recordings. Therefore, the applicability of the Rules to online news organizations is itself called into question.

To conclude, it is justified to regulate digital media given the size of our country, the diversity and sensitivity around social issues and the introduction of the rules is a welcome step, although they should extend to the regulation of news media in a manner similar to OTT platforms and social media intermediaries deserve consideration.

The author is a co-founding partner of Phoenix Legal.

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