Digital Media Content material Guidelines: Excessive?

In the rules, digital media are defined to include “news and current affairs editors”, which can be of various types.

From Saket Shukla

The Government of India introduced the highly anticipated Information Technology Rules (Intermediate Guidelines and Code of Ethics for Digital Media) of 2021 (Rules) to regulate content across various digital platforms. The rules are intended to cover social media platforms, OTT platforms, and digital news media. Because of their wide reach, the discourse on regulating content on OTT platforms has increased, and the courts have actively dealt with related cases. According to reports, the Supreme Court found that the rules were missing teeth on a matter where the control and regulation of OTT platforms was controversial. The government seems to have made it clear that it wanted to strike a balance between no censorship and internal self-regulation.

What the rules mean

The rules provide for a three-tier supervisory mechanism to regulate OTT platforms, social media brokers and digital news media, which includes self-regulation as a first step, followed by regulation by a self-regulating organization (SRO) and finally oversight by a cross-departmental committee mechanism with an authorized officer whose rank is not lower than that of a joint secretary (committee). The committee has extensive powers, including recommending reprimands, apologizing, issuing warnings and removing content.

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

While the new regime can be expected to take hold over time, the rules seem to present some initial challenges that may need to be ironed out. Some of these are briefly discussed as follows.

CBFC against committee

The rules require that “online curated content” be classified and rated according to its age suitability. This also applies to films that are published on OTT platforms, as this is content that is curated online. Films released on screens are already subject to certification by the Central Board of Film Certification (CBFC), a legal body established under the law of parliament, the Cinematograph Act of 1952. If the same film is published on OTT platforms, a complainant could contest the CBFC certified content, and possibly the same content would be reviewed by the committee formed by the rules, i.e. delegated legislation. Ideally, if certain content has been approved by the CBFC, one would expect the rules not to apply to them until the certification is changed.

Digital news media

In the rules, digital media are defined to include “news and current affairs editors”, which can be of various types. In general, the categories of such publishers are: (a) print media organizations; (b) broadcasters; and (c) stand-alone news media portals (e.g., Newslaundry and ThePrint) that publish content online. Online news publishers exclude newspapers and replica e-newspapers. The first category of such online news publishers is already subject to the Press Council of India’s Self-Government Code, while broadcasters are subject to the standards of the Cable Television Networks (Regulation) Act 1995. It may be useful to reconsider whether these organizations should be subject to the Rules of Procedure for the sole reason that they are posting news, since the Rules of Procedure would appeal to the Committee, which is made up of bureaucrats and has wide powers. Many of these print media and broadcasters would have the same editorial team handling both digital and traditional content, and in practice the additional conformities could have been avoided.

The third category of news and current affairs publishers has not previously been regulated because they do not rely on public funds (e.g., radio waves like broadcasters do) and do not require an operating license. The government’s intention to treat print and digital media similarly was clear when the limit on FDI in digital news media was capped at 26%, which is in line with traditional media. While a foreign hand might be controversial on Indian news, in a digital hyper-connected world where physical registration of digital companies is not controversial, it is doubtful that mere restriction on foreign investment would do the job. If the intention is to equate news portals with the printing sector, both could be spared this additional supervision instead of subjecting them to bureaucratic control according to the rules.

In particular, the rules were established under the provisions of the Information Technology Act of 2000 in exercise of the powers of the central government to establish a procedure for blocking public access to certain information by an intermediary or government agency and the guidelines to be followed intermediary. At the first flush, an online news company may not qualify as an intermediary. This is a person who receives, stores or transmits electronic records or provides services in relation to such records on behalf of another person. As a result, the applicability of the rules to online news companies themselves is in doubt.

In conclusion, given the size of our country, the diversity and sensitivity to social issues and the introduction of the rules, digital media regulation is a welcome move, even if it does affect news media regulation in a similar way to OTT- Platforms and OTT platforms should extend social media intermediaries are worth considering.

The author is a co-founder of Phoenix Legal.

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