The government on Thursday unveiled its plan to exercise tighter control over large social media firms, digital news sites and video streaming platforms such as Netflix and Amazon Prime Video.
Called the ‘Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules 2021′, the new rules that are likely to have far-reaching implications for the digital media space, have been described as ‘soft-touch regulatory architecture" by the government.
The guidelines will require big social media companies to take down unlawful content within a specific time-frame after being served either a court order or a notice by an appropriate government agency. Also, the “significant social media intermediaries" will be required to identify the “first originator" for what they consider mischievous content on messaging apps, a move that may spark fears of state surveillance.
As per the rules, social media platforms have been divided on the basis of size of their user base. The smaller platforms are kept under ‘social media intermediaries’ category while the big ones with significant user base have been categorised as ‘significant social media intermediary’. The government is yet to notify the threshold of user base that will distinguish between these two.
The significant social media intermediaries will have to appoint chief compliance officer, nodal contact person who will coordinate with law enforcement agencies and a resident grievance officer. All these appointees have to be a resident in India.
“The govt welcomes criticism and the right to dissent. Social media has been used to ask questions but it is important that users must also be given a proper forum for resolution of their grievances in a time bound manner against the abuse and misuse of social media," said union minister of information and technology Ravi Shankar Prasad at a media briefing.
The minister said that social media platforms have amassed significant user base in India including WhatsApp (53 crore), YouTube (44.8 crore), Facebook (41 crore), Instagram (21 crore) and Twitter (1.75 crore).
Big platforms have also been asked to publish a monthly compliance report mentioning the details of complaints received and action taken.
The rules also state that users who wish to verify their accounts voluntarily shall be provided an appropriate mechanism by the social media platforms. Significant social media intermediaries will have to provide prior intimation to users before removing or disabling access to any information shared by them.
Importantly, upon receiving a court order, the rules restrict these big intermediaries to host or publish any information which is prohibited under any law in relation to the interest of the sovereignty and integrity of India, public order, friendly relations with foreign countries etc.
Gurshabad Grover, senior policy officer at Centre for Internet and Society (CIS) noted while the attempt to bring accountability through grievance redressal must be appreciated there is also a clear message from the government that it is serious about content takedowns and is looking at strict compliance.
"Legally speaking, certain points in the guidelines amount to significant obligation that are not foreseeable from the text of the law itself. Going into invasion of privacy (through tracing of first originator) and defining types of intermediaries (two kinds of social media intermediaries) should be done through law and not through delegated legislation. At its worst, this can be seen as an attempt to bypass the parliament," he said.
The government also tightened its control over digital news media and OTT (over-the-top) video streaming platforms through a three-tier mechanism. While the first two tiers bring in place a system of self-regulation by the platform itself and by the self-regulatory bodies of content publishers, the third calls for an oversight mechanism by the central government.
“The idea is to create a level-playing field for all media, since print and television already worked under certain restrictions," union minister of information and broadcasting Prakash Javadekar said.
The government had asked OTT platforms to come up with a code of self-regulation multiple times but the last draft of the same had allowed for no third-party intervention. While freedom of the press is absolute, it needs to come with certain responsibility, Javadekar added. Publishers of news on digital media would be required to observe Norms of Journalistic Conduct of the Press Council of India and the Programme Code under the Cable Television Networks Regulation Act, so far followed by print and TV respectively.
According to the new rules, the digital website or content publisher will have to appoint a grievance redressal officer based in India who will have to act upon the complaint within 15 days. The second tier will comprise the self-regulatory body of the news publisher or streaming platforms headed by a retired Supreme Court or High Court judge or an eminent person. Third, and most importantly, the I&B ministry will establish an inter-departmental committee for hearing grievances.
Instead of pre-censorship, platform owners will have to classify their content according to different age groups: “U" or universal rating, and others for 7+, 13+, 16+ and then 18+ age groups.
“These guidelines are on expected lines and are really quite mild compared to the kind of pre-censorship of content many were fearing," said a senior executive at a streaming platform. The rules, the person said, have stemmed from the industry’s failure in formulating a code of self-regulation that the government found satisfactory.
However, he said that OTT platforms will have developed these classifications for India as they do not exist in other countries. Platforms would also be required to implement parental locks for content classified as U/A 13+ or higher, and reliable age verification mechanisms for content classified as “A".
Karan Taurani, research analyst at Elara Capital Ltd said the move will lead to consolidation (in the OTT industry) or shutdown of niche apps which have always relied on obscene content, but will augur well for large global giants and broadcaster-led OTTs, with especially the latter having a strong track record of creating content within government regulations. “The situation is similar for the news genre; larger news broadcaster groups may have an edge versus smaller news aggregators," Taurani added.
Netflix, ZEE5, Shemaroo, Hoichoi and ALTBalaji declined to comment. Amazon Prime Video, Disney+ Hotstar, SonyLIV, Eros Now, VOOT, MX Player and Lionsgate Play did not respond to Mint's queries.
The courts will need to be involved in interpretation of some aspects of the new rules, said Chandrima Mitra, partner at DSK Legal.
“There are various categories of ratings now which may become more cumbersome for the content creator as well as the platform. Except animated films or series, all content currently on OTT platforms may fall into the U/A 16+ or the A category. The players and creators will have to probably re-look at the kind of content they want to make since these ratings will directly impact the storytelling and the commercials involved," Mitra said. Further, there would be ambiguity regarding certain films which may have already received CBFC certification. It is unclear whether the platform would need to incorporate the same certification or re-determine it based on these rules, which would lead to increasing compliance procedures.
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