Modi government tightens controls over OTT, online news media, social media; critics call it proxy regulation of news media

Published : February 26, 2021 12:22 IST

Ravi Shankar Prasad, Union Minister for Electronics and Information Technology, and Prakash Javadekar, Minister for Information and Broadcasting, address a press conference where they unveiled the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, on February 25. Photo: KAMAL SINGH/PTI

At a press conference on February 25, Ravi Shankar Prasad, Minister for Electronics and Information Technology, and Prakash Javadekar, Minister for Information and Broadcasting, unveiled the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, that purport to regulate digital media, social media and Over The Top platforms. The rules have not been subject to parliamentary scrutiny and neither are they statutory in that sense, but give overarching powers to the government to censor and regulate social media intermediaries and more importantly the online news media. The Ministry would set up a Grievance Portal as a central repository to process all grievances from the public.

An intermediary, according to the rules, refers to websites, apps, blogs, portals of social media networks, media sharing websites, online discussion forums and “other such functionally similar intermediaries”. An entire list of dos and don’ts have been drawn up for intermediaries as part of the rules and regulations for their users. Among them, users will need to be informed not to “host, display, upload, modify, publish, transmit, store, update or share any information that was defamatory, obscene, pornographic, paedophilic, insulting or harassing on basis of gender, racially or ethnically objectionable, harmful to minors” and information that “threatens the unity and integrity, defence, security or sovereignty of India, friendly relations with States, or public order, or causes incitement to the commission of any cognisable offence or prevents investigation of any offence or is insulting any foreign states”. If such information is hosted, stored or published it would have to be removed within 36 hours after being either notified by a court order or a government agency.

The intermediary would be required to employ a Chief Compliance Officer and a nodal person to liaise with government agencies on a 24x7 basis. Every six months, periodic compliance reports would need to be published with details of action taken. A code of ethics has been drawn up for the online digital media which includes “publishers of news and current affairs content”. An inter-departmental committee constituted by the I&B Ministry and comprising representatives of seven ministries would adjudicate disputes, grievances, etc.

People have expressed concern that it may encourage “proxy grievances”. According to the Internet Freedom Foundation (IFF), an organisation that works for net neutrality, privacy, free expression and innovation, the rules had the potential of fundamentally changing how the Internet is accessed and used by millions of users across India. The rules, stated the IFF, were more a ploy to regulate OTT platforms and online media through proxy, apart from being “grossly unconstitutional”.

The IFF said that the vague definition of “publisher of news and current affairs content” would discriminate against small and independent media that often use the Internet to disseminate news and content as opposed to the legacy media. The rules made it mandatory for social media intermediaries like Whatsapp, Signal or Telegram to disclose the identity of the “originator” of the “objectionable post” or message, which meant that end to end encryption provided hitherto would stand violated. As of now, end to end encryption kept the identity of the person confidential and not open to complete scrutiny. It was also interesting that the IT Act already provided encryption standards and methods. And there was a 2009 Ministry of Home Affairs notification that gave powers to the government to demand “decryption”. The rules had also failed to take into account the possibility that the originator of the information would have no control over the forwarding of the messages or altering of the original message and could finally be framed for something that he or she did not do.

An appendix to the rules defines a “Code of Ethics and Procedure and Safeguards in relation to digital/online media which shall apply to applicable entities”. The applicable entities include “publishers of news affairs and content” and “intermediaries which primarily enable the transmission of online curated content”. Sub Rule 3 of Rule 8 provided for a three-tier level of self-regulation; Level I, by the applicable entities, Level II, self-regulation by self-regulation bodies of the applicable entities and Level III, oversight mechanism by the Central government. The oversight mechanism had no clear statutory backing and would function similar to the mechanisms regulating the electronic media. In fact, at the press conference, Prakash Javadekar said it in so many words that the process was similar to the regulation of the electronic media. Under Rule 13(4), powers of censorship, removal of content and apology scrolls were mandated. The IFF said that all this has been done without being legislated in Parliament.

The background

It was following an outcry over some dialogues and scenes in Tandav, a quasi-political thriller web series on Amazon Prime, and the subsequent removal of the allegedly objectionable dialogues, the government uncharacteristically swung into action declaring its intent to regulate OTT entertainment and online news media. When the Tandav controversy had almost died down after Amazon sanitised the scenes that apparently offended majoritarian religious sentiments, a new controversy erupted. This time it was the government which was agitated over tweets by individuals and organisations that lent support to the farmers’ agitation, support that it perceived was inherently inimical to the interests of the country. The government directed Twitter to delete more than 500 accounts. Twitter complied initially but restored several of those accounts especially those related to newspersons, media, activists and political persons.

Meanwhile, the Allahabad High Court in a 20-page order denied pre-arrest bail to Aparna Purohit the Commercial Head of Amazon Prime Video, the producer of Tandav, on the grounds that the scenes were made “intentionally using the names of Hindu gods and sage to convey an insidious message”. Purohit was booked under various sections of the IT Act and the Indian Penal Code, including 153-A (promoting enmity among different groups), 295 (defiling place of worship with intent to insult religion), 505(1)(b) (public mischief) and 505(2) (statement promoting hatred between classes).