Attempt to curb the uncurbed: IT and OTT guidelines 2021


By: Soumya Tiwari
Abstract
The Central Government of India, on February 25, 2021, issued a set of guidelines under the title of Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules; 2021.The rules are conferred by Section 87(2) of the Information Technology Act 2000, and are in the supersession of Information Technology (Intermediaries Guidelines) 2011. The notification of rules and the timing, and the incidents that have followed up to the articulation of framework of these ethic codes have been a matter of contention between the authorities and the parties concerned, which primarily narrows down to social media platforms and intermediaries, digital news platforms, and OTT (Over-the-top) platforms. The rules have drawn a lot of traction due to their procedural oversight mechanism, and being regarded as a threat of user’s privacy and anonymity on these platforms, and are considered being yet another move by the allegedly “fascist” government to curb the voice of dissent.
Though the Draft is broad and open to various interpretations, the article here highlights the key features of the Draft and opines on its apparent arbitrariness.

Keywords
Union Government, Information Technology, New IT Guidelines 2021, OTT, social media, user’s privacy, intermediary

The new Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021(hereafter, the Draft), have sparked a fierce debate across the nation about the regulation ethics mentioned in it. It has brought the question of user’s and platforms’ individuality and freedom in question, and at stake is the liberty of millions of people on such platforms and the kind of content they are exposed to, or they willingly put out on their personal accounts’ in a public manner. It has also been treated as a whip on the bastions of a few remaining outspoken critic platforms, against the policies and actions of the Government, of digital media and social media platforms on the Internet.
Background of the IT guidelines
To provide a contextual background of the topic, the Supreme Court, in 2018, observed that the Union Government requires framing a set of laws which eliminate the child pornography, revenge porn, morphed images containing full or partial nudity, and abusive content on the Internet to make the platforms a safe place for people of all kinds and sections.
In furtherance to this, on December 24, 2018, the Indian Express broke the news of “confidential” meeting in which the changes were proposed for the amendment of Section 79 of Information Technology Act, 2000 (hereafter, the Act). Section 79 of the Act provides what is regarded as the “safe harbor” for the intermediaries who host the user-generated content. This notification was in furtherance and was to be complied under the Information Technology (Intermediaries Guidelines) Rules, 2011.
However, the Government of India (hereafter, GOI) contemplated changes to these guidelines since the end of 2018, and the recent events spread across the country set-up the stage for the GOI to bring the new draft of IT guidelines which increase the liability and responsibility of the intermediaries, and also whipped out against the OTT platforms and digital news media.
Draft Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, 2021
Recently, over a course of few months prior to the issuing of draft notification by the GOI, a series of events indicated about such a step in hindsight. The regulation of content on video-streaming platforms such as Netflix and Amazon, and many others, and also the kind of backlash GOI received against the alleged “black” and contentious farm laws, on social media platforms such as Twitter, Instagram and more, was a wake-up call for the GOI to pursue such harsh course of action, to scale down its monstrosity of being a “dissent-curbing” government.
A series of events involving the release of web series named “Taandav”, which received a huge backlash in the perceived light of hurt religious sentiments and beliefs by a majority of the society, which further led to the members of majority-ruling BJP party members to come up front and demand for its ban, and filing of multiple FIRs. Also, the wide-spread support for farmers on various social media platforms and fierce ground reporting by the independent digital media journalists, who reported the behavior and treatment meted out to the farmers, who have been protesting against the three farm laws on national capital’s borders.
It is not implied that these were the only incidents that led to the drafting of such rules when the nation is in havoc by the enraging pandemic, but these incidents had set-up a platform where it became easy for the GOI to justify its act of bringing such rules.
Key Highlights of 2021 IT Rules
Intrusion into Privacy
There are several features of the Draft where the regulations, apparently, have overstepped the line of being a “regulation” in itself, and appear as an incessant tool at the will of GOI for barging into the business of social media platforms and their users’ privacy.
The regulations require the messaging-services apps like WhatsApp, Telegram, and Signal etc., which are primarily based on the technology of “end-to-end encryption” to identify the first originator of any information on their respective platforms. This places the millions of users of these platforms in an extremely vulnerable position where their reliability on the platform is in danger and apparently, not “traceability” but an intrusion of privacy. This even becomes less transparent when evil minds can modify the original information to frame an innocent person. Moreover, in case of the first originator of the information being someone outside of the nation, the platforms require to identify the person who first circulated the information within the country’s boundaries, which apparently the person has no control over about the message being forwarded many times.
In so far as Rule 5(2) requires modifications to the design of encrypted platforms to enable traceability, it is beyond the scope of the parent provision that is Section 79 of the IT Act. Here, it is important to note that the power to prescribe encryption standards and methods originates from Section 84A of the IT Act, and not Section 79, which is a safe harbor provision.
The Draft, further, under sub-rule (4) of Rule 5, necessitates those significant social media intermediaries to develop and deploy AI-based censorship tools which proactively recognize information that portrays any demonstration or reproduction in any form portraying rape, child sexual abuse, or conduct, whether explicit or implicit. However, it is implied that the usage of tools would be limited, but the out-of-bound use of such tools in the past, observed closely along with the vague interpretation of the regulation, makes it highly suspicious of the usage of such tools in the relevant contexts itself.
“Intermediary” Conundrum
The definition of the term “intermediary” is same in compliance with the IT Act, 2000; however, the new IT rules seek to regulate “social media intermediary” and “significant social media intermediary” as well. The meaning of the two terms included in the Draft notification has not been defined anywhere in the Act, and also the definitions in the Draft are broadly vague in their very interpretation. Thus, it is being presumed that GOI may be tangible in its interpretation when imposing the regulations on any concerned party. The same issue can be a hindrance in the implementation of the regulations since; its vagueness and lack of justified interpretation can prove to be a ground of contention in judicial sense. The same happened in Shreya Singhal v UOI, where the constitutionality of Section 66(A) of the Act was challenged in the Court.
Also, the intermediaries are now required to inform users through their privacy policy or user agreements to not publish or share any information that is: (i) invasive of another’s bodily privacy or harassing on the basis of gender; (ii) patently false or misleading but appearing as a fact; or (iii) false, with the intention of causing injury or to profit; all of this appears to have been done in the goodwill of the people, agreed. However, Intermediaries now need to mandatorily inform users yearly regarding any resistance or change of rules, privacy policy, or user agreement, accordingly fixing consistent necessities and designating regulatory obligations.
Grievance Redressal Mechanism
It is to be noted that the provision of grievance redressal mechanism has been broadened under the purview of the Draft, which are in furtherance of the provisions provided under the Act.
In respect to the social media content related grievances, not exclusively should the intermediary distribute the name, contact details, or mechanism through which a user can complain, yet in addition ought to recognize the grievance inside 24 hours and change it inside 15 days of receipt, not at all like the one-month time frame given before. In the event that the objection is made comparable to the exposure of private parts or pantomime of an individual, the intermediary ought to endeavor to impair admittance to such substance within 24 hours.
This further increases the onus on the social-media platforms and their compliance with these regulations, and also the unclear and vague meaning of the “offensive-content” puts too much risk and danger on the user’s will on these platforms, and empowers GOI to be the last voice in such matter where the “takedowns” of such content is an untenable option.
In respect to digital media and videos streaming platforms, the Draft necessitates further stringent provisions regarding the grievance mechanisms, which are apparently more likely to lead to gross interference by the majority-party government to make the platforms comply in accordance with their adulterated and misleading ideologies.
OTT platforms, Digital News Media and their content “regulation”
The draft IT Rules, 2021 have, in the Appendix to the Rules defined a “Code Of Ethics And Procedure and Safeguards In Relation To Digital/Online Media” which shall apply on “applicable entities”. “Applicable entities” as contained in Rule 7 include, “publishers of news and current affairs content”; and “intermediaries which primarily enable the transmission of news and current affairs content”; and “publishers of online curated content”; and, “intermediaries which primarily enable the transmission of online curated content.”
Further, under sub-rule (3) of Rule 8, the Rules lay down a three-tier structure for observance and adherence to the Code which is as follows, “Level I – Self-regulation by the applicable entity”; “Level II – Self-regulation by the self-regulating bodies of the applicable entities”; “Level III – Oversight mechanism by the Central Government.”
By all means, it indicates that interruption by the GOI in “filtration” of content, or more feasibly, in accordance of public outcry or majority-favoritism, the GOI can direct the platforms to act in the desired manner, which also means that the independence of these platforms is at peril, which deduces that any type of content which does not sit well with a particular ideology or “tradition and customs” of the Indian society will be demotivated and discontinued, which might also include content including severe criticism of the GOI. Such regulations put these platforms at par with the television curated content, whose deteriorating status due to grave filtering of content, is known to all.
In respect to independent digital media houses, the vague definition of “publisher of news and current affairs content” may also lead to further arbitrariness. The definition excludes replica e-papers of newspapers from its ambit. Such definition would further lead to more discretionary use of regulations and arbitrary censorship against independent digital media, and exempts legacy and established media houses from such regulations, which are already a puppet in the hands of GOI.
Conclusion
The Draft, brought in form of notification instead of a proposed legislation and without any discussion in the Parliament, puts a lot of competent authorities and user’s privacy at peril, and portrays the vulnerability and hastiness of GOI to push it through all firewalls and implement as soon as possible. Though the primary motive of reducing the reach and intensity of child pornography, and recognizing the first originator of misinformation, it is however not certain that it will be done in compliance of the regulated draft, or according to the will of GOI. The Draft will bring a revolutionary dynamic phase in context to the internet in India, and will change it forever, apparently not for the good.
References

  1. Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021
  2. Dar A., Et.al, “India: New Rules For Digital Media Platforms And Intermediaries”, https://www.mondaq.com/india/media-entertainment-law/1042234/new-rules-for-digital-media-platforms-and-intermediaries , 2021, (accessed 14 May 2021)
  3. Jain A., “Latest Draft Intermediary Rules: Fixing Big Tech, by Breaking Our Digital Rights?” (Internet Freedom Foundation February 25, 2021), https://internetfreedom.in/latest-draft-intermediary-rules-fixing-big-tech-by-breaking-our-digital-rights/ (accessed May 16, 2021 )
  4. Image Source : https://www.digit.in/news/general/it-rules-2021-and-the-need-to-regulate-social-media-platforms-what-it-means-for-you-58588.html

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