Examining the Intermediary and Digital Media Rules 2021: Digital Media and News Portals (Part II)

Posted on March 8, 2021

Co-authored by Melita Tessy & Vivek Basanagoudar*

Netflix, HBO and cable giants are coming for password sharing | The Seattle  Times
Image Source: The Seattle Times

Introduction

In the previous blog of the series ‘Examining the Intermediary and Digital Media Rules 2021’, the author analysed the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021 (“IT Rules of 2021”) with a specific focus on the regulation of intermediaries including social media platforms. This article will constitute the second blog of the series and aims to outline the trains of events that eventually led to the regulation of Over The Top (“OTT”) services and digital news media. Furthermore, the authors seek to identify issues that could arise with consumer viewership, streaming platform regulation and freedom of speech and expression.

OTT Regulation in India – An Overview

On December 2nd of 2016, an RTI was responded to by the Ministry of Information & Broadcasting (“MIB”) wherein it conveyed that it was not the competent authority to control online content and even strayed away from the proposition of introducing a regulatory framework for OTT platforms and digital media portals.[1] Subsequently, several developments gave impetus for the reversal of MIB’s above-taken stance. In the month of October 2018, an NGO, namely, the Justice for Rights Foundation, filed a Public Interest Litigation[2] wherein they sought for independent guidelines that governed and regulated content on streaming platforms. In response, the MIB filed an affidavit wherein it claimed that there was no need for online platforms to obtain licenses for displaying their own content and thereby required no regulation. The Ministry of Electronics and Information Technology (“MeitY”) even claimed that the regulation of online content was outside its jurisdiction and there were no provisions regarding that would enable them to perform the same. After hearing the relevant stakeholders, the Court opined that there was no general power for regulation on the internet but upon its misuse, the provisions of the Information Technology Act, 2000 (“IT Act“) could be implemented. The Court also identified its inability to issue a mandamus for the framing of guidelines but stressed on the usage of the relevant provisions of the IT Act.

Online streaming platforms definitely paid heed to these actions and subsequently drafted their own self-regulation codes. After a strenuous process of introducing alterations, on 4th September 2020, the Self-Regulation for Online Curated Content Providers code was unveiled and adopted by 15 streaming platforms. Shortly after, the Telecom Regulatory Authority of India (“TRAI”) in its recommendations, claimed that it was not an ‘opportune moment’ to recommend a comprehensive regulatory framework for OTT services and indicated that there were laws in place that could aid in their regulation. A month later, a PIL[3] was filed before the Supreme Court of India wherein the petitioner demanded for the creation of an autonomous regulation system for online content. A notice was issued by the Apex court and was sent to the Centre regarding the same. Having taken cognisance of the notice, an amendment was introduced through a notification on the 9th of November 2020. The President issued such notification under Article 77(3) of the Constitution[4] and thereby amended ‘The Government of India (Allocation of Business) Rules, 1961’ to add a new sub-heading VA to the second schedule, namely, “Digital/Online Media,” with the following two entries: i) films and audio-visual programmes made available by online content providers; and ii) news and current affairs content on online platforms. The MIB was provided with the power to regulate policies for OTT platforms, and this was the key takeaway from the notification.

After all the above-mentioned events occurred, MeitY established the IT Rules of 2021 under Sections 87(1) & (2) of the IT Act, 2000. The rules were established in supersession of those of 2011 and they seek to regulate, online intermediaries, online streaming services and digital news media.  Hereafter, the article delves into the issues faced by the relevant stakeholders.

As a user, how will you watch your shows? Will the rules affect your viewing?

For the purpose of this section, a user is a viewer accessing the streaming platform from India without the use of a VPN allowing him to watch content not available on the Indian version of the streaming platform.

In the author’s opinion, the new rules, if properly implemented without political bias, will not negatively impact the streaming experience of the user on OTT platforms. The content classification system is clearly explained and unambiguous in the Appendix to the rules. Streaming platforms will be required to classify their originals or exclusives according to the said system which divides the classification into 5 categories: U, U/A 7+, U/A 13+, U/A 16+, A. Viewer discretion is given due importance and parents can monitor their children’s viewing experience as necessary through the use of parental controls which is made mandatory for shows that are classified U/A 13+ or higher.

Till this point, parental controls were only optional on India’s most popular streaming sites. Accordingly, depending on the widely variable nature of parental oversight, the new rules have more potential to affect the viewing experience of children younger than 18 as opposed to fully grown adults.

Moreover, the user now has the opportunity to file an online grievance through a grievance portal established the MIB against any of the content published by a streaming platform. The grievance will be acknowledged within 24 hours and will be decided upon within 15 days from the date of filing. If it is not decided within 15 days, it will be escalated to higher bodies. The user can also file an appeal to higher bodies. This gives the user much more agency than was available before.

As a streaming platform like Netflix/Prime Video, how does it affect you?

As a streaming platform such as Netflix or Prime Video, you will face additional obligations. They are listed below:

  1. You will be required to adhere to the above-explained classification system and classify all your originals and exclusives according to the same. You will need to introduce mandatory parental controls for shows classified U/A 13+ or above.
  2. You will be required to take reasonable measures to make content accessible to persons with disabilities. This provision is not explained adequately and the term ‘measures’ needs further clarification.
  3. You will need to appoint a grievance officer who will be residing in India. He will be responsible for resolving user complaints in 15 days. This is requisite under Level 1 of the three tier self regulation mechanism prescribed in the rules.
  4. You will be required to constitute a self-regulating body in association with other streaming companies. This shall be the Level 1 of the three tier self regulation mechanism to hear appeals from Level 1.
  5. The Level 1 and Level 2 authorities will be required to disclose all relevant details about the complaints and their resolution on the MIB’s Grievance Portal.
  6. You will be required to report cybersecurity incidents to the Indian Computer Emergency Response Team.

These obligations will inevitably impose a financial burden on the streaming sites. The mandatory parental controls may affect viewership of content rated U/A 13+ and above negatively. One concerning provision under the rules is the General Principles for Online Curated Content. It essentially provides that streaming sites must take into consideration the multi-racial and multi-religious nature of the country. It also provides that due caution must be undertaken with respect to content that affects the sovereignty and integrity of India; security of the State; and friendly relations with foreign countries. Since the scope of interpretation for this rule is extremely wide, it could easily become prone to misuse and hinder the ability of streaming sites to make shows on certain matters of social and political importance.

Online News Portals – would this have an impact on Scroll or LiveLaw? Can these rules affect the freedom of speech?

According to the rules, websites such as Scroll and LiveLaw are, admittedly, online publishers of news and current affairs content. Thus, these rules would be applicable to them and they will be required to conform with the three tier self regulation mechanism prescribed under the rules just like the OTT platforms.

With regards to their freedom of speech, the rules only require news portals to conform with pre-existing laws such as (i) Norms of Journalistic Conduct of the Press Council of India under the Press Council Act, 1978, and (ii) Programme Code under section 5 of the Cable Television Networks regulation) Act, 1995. Unless it can be proved that the said laws are unconstitutional, which is currently not the case, it cannot be successfully argued that the said rules are violative of the freedom of speech and expression. That being said, the online news industry has expressed that the regulation of small news sites is unnecessary and constitutes a case of over-regulation.

Conclusion

From the above circumstances, it can be concluded that the IT Rules of 2021 are going to bring about certain changes in the online realm and this will in turn lead to content related disputes. The Supreme Court has already expressed its dissatisfaction with the rules by claiming that they lack ‘teeth’. The former remark was made due to the lack of provisions for prosecution and the lack of fines that could be imposed accordingly.[5] Concurring with the author of the previous article, the rules mark a novel debate in public discourse concerning the regulation of online platforms and they may even spark controversies concerning the freedom of speech and expression. Only time and judicial interpretation will bring clarity to this discourse and change will occur accordingly.

Disclaimer: Nothing in this article shall be construed to be legal advice. This article is purely for research and informational purposes. There is no intent to disparage any third party(s) / third party platform(s) and we do not claim to be associated with any such third party(s) / third party platform(s) referenced to in this article.


*Melita is a Researcher at IntellecTech Law and a law student at CHRIST (Deemed to be University), with a keen interest in IP and TMT law.  She published her novel ‘Battle of the Spheres’ when she was 15 and is one of India’s youngest TEDx Speakers.

Vivek is a Researcher at IntellecTech Law and is a second year law student pursuing a B.A.LL.B degree from Jindal Global Law School. Having completed over 20 internships and 6 RAships in a span of one and a half years, he is determined to succeed in the fields of Intellectual Property Law, Environmental Law and Gender Justice.

[1] RTI registration number MOIAB/R/2016/50541; MIB’s response dated December 2, 2016.

[2] Justice For Rights Foundation v. Union of India, W.P 11164/2018.

[3] Shashank Shekhar Jha v. Union of India, W.P. 1080/2020.

[4] India Const. art. 77, cl. 3.

[5] Aparna Purohit v. The State of Uttar Pradesh, SLP. 1983/2021.

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