Announcing new rules for social media companies and a code of ethics for OTT streaming platforms and digital news media, Union Ministers Ravi Shankar Prasad and Prakash Javadekar, on Thursday, 25 February said they “are empowering the ordinary users of social media” and aims to address “double standards” by platforms on moderating content.
The 30-page document, titled Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, 2021, define social media companies, suggest a three-tier mechanism for regulation of all online media, which confers blocking powers to an inter-ministerial committee.
Describing the rules as a “soft touch mechanism”, Union Electronics & IT Minister Ravi Shankar Prasad said they will be implemented in three months’ time.
These rules also require social media intermediaries like Facebook and Twitter to deploy “automated tools” like AI to remove objectionable content and also make it mandatory for messaging platforms like WhatsApp to enable traceability of the first originator of the message, a move that could compromise end-to-end encryption.
The draft comes soon after the Centre informed the Parliament earlier in February that IT rules are being amended to make social media platforms more responsive and accountable to Indian laws.
“The government welcomes criticism and right to dissent. But it is very important that users be given a forum for resolution of their grievances against misuse and abuse of social media,” Prasad said at the press conference.
The rules come amidst major concerns of censorship and criticism of the process of rulemaking. Digital rights activists and experts have raised concern about the requirement by messaging platforms to trace the first originator of a message that may end up weakening end-to-end encryption.
Recent Issues With Social Media, OTTs
In early February, the government and Twitter also had major differences related to content moderation, as the microblogging platform initially pushed back against the Union Electronics & IT Ministry’s order to block over 1,500 accounts related to the farmers’ protest.
Similarly, OTT platforms such as Netflix and Amazon Prime have also come under fire for airing content that some claimed “hurt religious sentiments.” Tandav being the latest example.
“Social media is welcome to do business in India. They have done exceedingly well. They have got a good number of users. They have also empowered Indians. We commend this,” Prasad stated.
However, social media platforms will also have to stop their “double standards” in applying their policies in the US and India, Prasad said, adding. “Concerns are being raised over the years about rampant misuse of social media paltforms,” Prasad added.
Regulation of Social Media Platforms
Under Section 79 of the IT Act, social media platforms are classified as “intermediaries” and are protected from liability for content posted on its platform by users. This provision, known as ‘safe harbour’ will only apply to them now if they comply with the due diligence requirements set out in the new rules.
“The rules prescribe due diligence that must be followed by intermediaries, including social media intermediaries. In case, due diligence is not followed by the intermediary, safe harbour provisions will not apply to them,” the government press release states.
Intermediaries will be required to remove within 24 hours of receipt of complaints of content that exposes the private areas of individuals, show such individuals in full or partial nudity or in sexual act, or is in the nature of impersonation including morphed images.
Prasad, speaking at the press conference on Thursday, said that while they are not bringing a law to regulate social media, the rules will urge them to self-regulate.
He added that social media companies will be classified under two categories based on the number of users: Social media and significant social media platforms – Facebook, Twitter, Instagram, YouTube. Significant social media platforms will have additional obligations.
Prasad said at the press conference, that the additional obligations on the siginificant social media platforms will include the appointment of a chief compliance officer residing in India; a nodal contact person, grievance redressal officer, and the requirement to publish a monthly compliance report
3-Tier Grievance Redressal Mechanism
The rules contain a three-tier regulatory mechanism:
The first tier of the regulatory mechanism is grievance redressal by the company itself.
The second tier involves a Press Council of India-like regulatory body that will be headed by a retired judge of a high court or the Supreme Court.
The third-tier will comprise an inter-ministerial committee and will be headed by a joint secretary-level officer from the Ministry of Information and Broadcasting. In effect, in addition to the IT ministry, this committee would also recommend blocks or take downs, the report states.
The grievance redressal mechanism, similar to the one imposed on the television, will apply to both, digital news platforms as well as OTT streaming platforms.
Kazim Rizvi, Founder, The Dialogue, an independent Delhi-based public policy think tank said setting up of such a new grievance redressal and oversight mechanism is a dynamic change in the existing system but also pointed out “heavy handed” provisions.
“Though the Minister mentioned that structure has been created to facilitate a ‘soft touch regulation’ for the ecosystem and promotes ‘self regulation’, it is imperative to note that the power of the Oversight Board also includes ‘censuring an entity’, which is rather heavy-handed,” Rizvi said.
When asked at the press conference if digital news organisations will be consulted on the guidelines prior to implementation Union I&B MInister, Prakash Javadekar said the Ministry doesn’t even know how many digital news organisations are there.
“We don’t know how many digital news portals are there. If we don’t know how will we consult with them. Our doors are always open for suggestions and consultation,” Javadekar said.
Regulation of Digital Media & OTT Platforms
The rules also contain a ‘Code of Ethics’, which prescribe the guidelines to be followed by OTT platforms and online news and digital media entities.
Encouraging “self regulation” by digital media and streaming platforms, the ministers said that they shall appoint a Grievance Redressal Officer based in India who shall be responsible for the redressal of grievances received by it. The officer shall take a decision on every grievance received by it within 15 days.
Major Concerns of Censorship
Highliting the process by which news media and OTT platforms have been sought to be regulated under the IT Act, the Internet Freedom Foundation tweeted, “The first concern we are highlighting is the covert regulation of OTT and news media platforms through proxy.”
“We find this grossly unconstitutional,” IFF stated in its blog, adding, “This oversight mechanism is being created without any clear legislative backing and will now increasingly perform functions similar to those played by the Ministry of Information and Broadcasting for TV regulation.”
Kazim Rizvi echoed the concerns, calling the sweep of the rules “drastic”.
“Considering that the regulation of video streaming platforms and news media was not dealt with in the earlier Draft Rules released by the Government such drastic changes in regulation, in the absence of a wide consultation process with news media, OTT platforms and civil society is alarming,” Rizvi told The Quint.
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