Ravi Shankar Prasad, the Minister for Electronics and Information Technology, and Prakash Javadekar, Minister of Information and Broadcasting, announced new rules to govern online content on Thursday. The Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules 2021 cover a wide range of entities, including social media intermediaries, news media publishers, and online curated content platforms such as Netflix and Amazon Prime Video. These rules come on the back of multiple controversies involving these platforms and increasing concerns about their unregulated status.
Take, for instance, the Narendra Modi government’s recent row with Twitter over the removal of political content that the government considered inflammatory and anti-India. However, Twitter argued that nothing in these tweets violated laws on free speech. While the government eventually prevailed and Twitter took down a majority of the content it was directed to, this happened only after contentious exchanges between the two parties. Media reports speculated that Twitter executives could face serious legal repercussions for not complying with the government’s directives.
In the world of curated content platforms, there was a backlash against Amazon Prime Video over Tandav, its web series that depicted the murky world of politics. A spate of FIRs were filed across the country after a scene in the show was labeled religiously offensive. Consequently, the makers of Tandav modified the show to excise the offensive bits. This was just the latest in a lineup of web series having sparked a backlash, even as a two-year-old PIL calling for a regulatory mechanism to manage these platforms is currently pending before the Supreme Court.
The confusion regarding the moderation of online content of all hues — be it user-generated content on Twitter, Facebook, YouTube, etc. or big-budget productions on Amazon Prime, Netflix and others — lies at the crux of these controversies. It is unclear to operators, consumers and, it seems, the government, what should and should not be done within the parameters of the law when it comes to online content.
In such a context, the new rules are, prima facie, timely and necessary. They undertake the task of codifying important principles for the digital ecosystem. Notably, the rules distinguish between different kinds of content services, including social media intermediaries, publishers of news content and curated content platforms. Further, they classify some social media intermediaries as “significant social media intermediaries” if their user base crosses a certain number. Such platforms are subject to proportionally higher obligations in the new rules.
The recognition of threshold limits is encouraging because it underscores the understanding that the impact of different platforms on the internet varies based on their size and scale. This forms a clear link between potential harms and concomitant responsibilities — a perspective that should be retained throughout the complex task of digital regulation.
The new rules require a standardised content classification system for curated content platforms. They prescribe how these should be displayed and call for the implementation of measures that prevent children from accessing adult content. Through these steps, the new rules move beyond the archaic treatment of intermediaries in the IT Act as a uniform monolith. They recognise the diversity of digital entities and the measures required for their regulation.
Consumer grievance redressal
The IT Rules, 2021 propose a three-tier grievance redressal system to deal with consumer complaints for all three categories of content platforms. The first level consists of a grievance redressal officer based in India that every publisher must appoint to deal with consumer complaints.
At the second level, the rules call for the institution of one or more self-regulatory bodies, chaired by a retired judge of the Supreme Court or a High Court, or a person of eminence from relevant fields. Presumably, these distinct self-regulatory bodies are contemplated for the different kinds of categories covered by the rules — that is, digital news, social media intermediaries, and online curated content platforms. This body can issue warnings, seek apologies, or, in the case of curated content platforms, direct the reclassification of content or the modification of synopses and descriptors.
In cases where certain content incites the commission of cognisable offences against public order, and is detrimental to the sovereignty, integrity, and security of India, or jeopardises friendly relations with other countries, the self-regulatory body can refer it to the third and highest tier known as the Oversight Mechanism. At this level, a Joint Secretary-level authorised officer will head an Inter-Departmental Committee consisting of representatives from the Ministries of Information and Broadcasting, Home Affairs, Information Technology and External Affairs. This committee can recommend to the Ministry of Information and Broadcasting that a blocking order be issued, on approval of which recommendation the authorised officer can direct the relevant publisher, government agency, or intermediary to implement the blocking order.
However, the rules are not without their share of problems. Foremost among them is the lack of an open consultative process, which ought to be the norm in policymaking, especially when it impacts a wide range of diverse stakeholders.
Additionally, it is unclear how the proposed grievance redressal system will correct the asymmetries of information and power between consumers and platforms. Australia’s recent spat with Facebook over a new law that will require social media intermediaries to enter into licensing and revenue-sharing deals with news providers best illustrates this power asymmetry. Here, the social media giant chose to block all news content in Australia rather than complying with the law, ‘unfriending’ Australia as it were. In the end, Facebook came back to the negotiating table and won important concessions on price setting that blunted the edge of the law. When mainstream news media publishers supported by a national government cannot hope to match the bargaining power of platforms like Facebook, it remains unclear how a complex, multi-tier post facto grievance redressal system will help an aggrieved consumer do so.
Rather than empower the consumer, the grievance redressal system simply results in an expansion of the State’s power over online content. Despite having characteristics of self-regulation in its first two tiers, the entire system hinges on the Inter-Departmental Committee at the third tier — an entirely executive body. Ultimately, this body is empowered to direct any platform to take down any content that it sees fit for removal. This makes the self-regulatory character of the system illusionary, and effectively grants the executive the power of censorship over the internet.
The decision to ban or remove access to information is a weighty one in any democratic system that recognises the right to impart and receive information. This calls for a body more representative of the diverse interests at play, beyond the government. The proposed system imposes a higher standard of direct government control over content removal than the one even in the realm of television, where the Broadcasting Content Complaints Council (BCCC) with a two-tier mechanism exists. At the second-tier, the BCCC has government representation but remains independent and self-contained without government representatives exercising a veto.
Finally, when it comes to regulating news and current affairs, the Modi government’s reliance on decades-old codes like the Programme Code of the Cable Television Networks Act 1995 and the Norms of Journalistic Content under the Press Council Act of 1978 is bizarre. Indian courts, in judgments such as the milestone Aveek Sarkar case, have underlined the importance of a dynamic assessment of content standards, based on ever-evolving social mores. How these antiquated frameworks are suited to deal with the challenges of digital news remains unclear, because problems associated with digital news – such as rampant disinformation – are distinct and require a fresh look by policymakers.
Where it should be deregulating traditional industries like TV, to ensure it can compete on a level playing field with the online media ecosystem, the Modi government seems to have determined to thrust 25-year-old constructs upon the latter. Instead, the government must focus on facilitating a consensus between stakeholders on balancing the creative and emancipatory nature of the internet.
The author works at Koan Advisory Group, a technology policy consulting firm. Views are personal.
This article is part of ThePrint-Koan Advisory series that analyses emerging policies, laws and regulations in India’s technology sector. Read all the articles here.
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