New IT Rules for Social Media and OTT platforms – Explained Pointwise

Introduction

The Government of India has released the Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, 2021. It aims to regulate social media, digital news media, and Over-The-Top (OTT) content providers. The rules were jointly announced by the Minister for Information Technology and the Minister for Information and Broadcasting. Despite being praised by few experts as revolutionary, it also has certain challenges to be addressed. 

Need for the New IT Rules 2021:

India at present doesn’t have any specific rules to govern the digital news media and OTT platforms. At present these are governed under Section 79 of the IT Act. But it was not able to effectively control the misuse of data over social media and digital platforms. The reasons were,

1. Non-liability of Intermediary:
   • Section 69 of the IT Act gives power to the government to issue directions “to intercept, decrypt or monitor…any information generated, transmitted, received or stored” in any digital equipment.
   • The Intermediaries are required to preserve and retain specified information. Further, they have to obey the directions issued by the government from time to time.
   • By adhering to government rules, they will get protected from legal action for any user-generated content under Section 79. Section 79 states that an intermediary (Digital media and OTTs) shall not be liable for any third party information, data, or communication
2. Further, the user base of big companies has expanded rapidly. Currently there are over 53 crore WhatsApp users, over 44.8 Crore YouTube users and 41 Crore Facebook users. 
3. The government rejected the Self-regulatory toolkit submitted by 17 OTT Platforms. The government rejected them for reasons like lack of independent third-party monitoring, the tool-kit did not have a well-defined Code of Ethics, etc.

This induced the government to come up with new rules under the IT Act, 2000. The IT Rules 2011 got replaced with the new IT Rules 2021.

Salient provisions of IT Rules 2021

The new IT rules have been framed to address the Social Media, Digital Media and OTT platforms in a specific manner.

New IT Rules related to Social Media:

1. Social media companies are prohibited from hosting or publishing any unlawful information. These information are “in relation to the interest of the sovereignty and integrity of India, public order, friendly relations with foreign countries, etc.
2. If such information is hosted or published the government can take down such information within 24 hours. The user will be given a notice before his/her content is taken down.
3. The government can direct messaging platforms to tie the identity of the user with the message transmitted by him/her for strengthening traceability.
4. The IT rules 2021 call for social media companies to publish a monthly compliance report.
5. Social media platforms are classified into two categories
   1. Social media intermediaries – Platforms that have a limited user base.
   2. Significant social media intermediaries – These are the platforms with a large user base.
6. The significant social media intermediaries have to follow few additional measures like:
   • These platforms should have a physical contact address in India. 
   • Appointing a Chief Compliance Officer, Nodal Contact Person, and a Resident Grievance Officer in India. All of them should be Indian Residents.
     • Nodal Contact Person will do 24×7 coordination with law enforcement agencies.
     • The Resident Grievance Officer must acknowledge the complaint within 24 hours, and resolve it within 15 days of receipt.

New IT Rules related to Digital media and OTT platforms:

• A Code of Ethics has been prescribed for OTT platforms and digital media entities.
• The streaming platforms (Like Netflix and Amazon Prime) will have to self-classify content on five age-based categories: U (universal), 7+, 13+, 16+, and A (adult).
• They need to have suitable parental locks for 13+ content and a robust age verification system for accessing adult content.
• Publishers of news on digital media will have to observe the norms of journalistic conduct of the Press Council of India and the Programme Code under the Cable Television Networks Regulation Act.
• A three-level grievance redressal mechanism has also been established:
  • Level-I: Self-regulation by the publishers
  • Level-II: Self-regulating body: This body shall be headed by a retired judge of the Supreme Court or a High Court or independent eminent person.
  • Level-III: Oversight mechanism: I&B Ministry will formulate an oversight mechanism and establish an inter-departmental committee for hearing grievances. This body will also have censorship and blocking powers.

Advantages of the new IT Rules 2021

1. It will ensure that social media platforms have to keep better checks and balances over their platforms. This will ensure the data is not shared unlawfully. This will ensure adherence to the rule of law.
2. The new IT rules enhance government regulation over social and digital media. This will enhance accountability and prevent arbitrary actions by digital platforms like the recent one by Twitter.
3. The new IT rules will lead to the empowerment of citizens. Since there is a mechanism for redressal and timely resolution of their grievances.
4. Disinformation (Fake and wrong information) of data can be controlled. Since there is proper regulatory mechanism, disinformation can be removed easily. This will reduce instances of fake news, violence, the spread of defamatory content and disruption of public order.
5. Giving due notice before removing content will prevent arbitrary removal of content. 
6. The imposition of print and electronic code of conduct on digital news media would ensure a level playing field for every media.
7. It will strengthen India’s position as a leader in digital policy and technological innovation. For example, China, with its larger digital population, has not been able to provide a fair and open local market for global companies in the digital space due to absence of proper IT Rules and Regulation.

Criticisms of the new IT Rules 2021

1. The New IT rules were not put for public consultation. Especially those related to regulations of online news portals and video streaming platforms. For example, IAMAI(Internet and Mobile Association of India) was not consulted on the proposed OTT guidelines.
2. The rules allow the government to enforce a traceability mechanism. This simply means a threat to the user’s privacy. It will hamper the end-to-end encryption of platforms like WhatsApp. 
3. As the new rules curtail free speech on digital platforms, there will be a sense of fear among the users.
4. The IT Act doesn’t cover content authors and creators like news media. But rules have included them.  This provides discretionary powers to the government. 
5. The proposed oversight mechanism doesn’t have any legislative backing which is generally given to other regulators. 
   • For example, the Telecom Regulatory Authority of India Act provides powers to TRAI (Telecom Regulatory Authority of India). Under the rules, the regulation will be done by a body composed of bureaucrats who might perform discretionary censorship thereby enhancing political control.

Suggestions for smooth implementation of new IT rules

• The government should consult with appropriate stakeholders. This will improve the inclusivity and acceptability of the new IT rules.
• The focus should be on strengthening citizen’s rights by learning from successful global examples like OFCOM (OFCOM is a communication regulator in the UK).
• The government must have a mindset of flexibility and agility to support the rules adequately.
• OTT platforms while regulating the content have to strike a balance. Especially between the diverse Indian society and the beliefs of viewers in India.

The enactment of new IT rules 2021 is a watershed moment that will transform the digital information ecology in India. A fine balance between freedom of speech and the need to curb the misuse in digital platforms have to be maintained. Both the government and the digital platforms will have to work together and fulfill this responsibility.