Thursday, July 18, 2024
HomeOpinionsDecoding it for the generalia: OTT rules, 2021

Decoding it for the generalia: OTT rules, 2021

Also Read

Recently a web series launched on the amazon prime video led to alleged brewing of communal hatred between Hindus and Muslims which became the final push for the Government of India to roll out the Information Technology (Guidelines for Intermediaries & Digital Media Ethics Code) Rules, 2021 (hereinafter referred to as IT Rules, 2021 or OTT Rules, 2021) to regulate internet based content & OTT platforms.

Over the top (OTT) platforms have gathered immense popularity in the contemporary times.. Fall in internet charges has also given a head start to the OTT platforms. The content available on these platforms can be accessed at any time with the help of mobile phones, laptops and television.OTT platforms have also thrived as a result of Covid-19 pandemic, which had put a pause on production, distribution and viewership of media content outside homes. The massive presence of OTT platforms and their impact on the society cannot be ignored. It is pertinent to note that prior to the formulation of IT Rules, 2021, there were no written rules to regulate the production, distribution and viewership of OTT content. The Information Technology (Intermediary Guidelines) Rules, 2011 had proven ineffective because of lack of comprehensiveness. Further, the Central Board of Film Certification, which is the primary regulatory body for television media content unfortunately, does not exercise authority over web based media due to its inherent characteristics. Ever since the advent of OTT content, allegations have been raised against them because of their depiction of violence, nudity, explicit sexual activities, gore, etc.

Such content is accessible to almost everyone, irrespective of age and it has been claimed that viewership of such content has led to an increase in crimes against women, overt and rather perverted sexual behavior by youth, endorsement of immorality and indecency and glorification of antagonistic characters. One of the examples is the Nikita Tomar Case wherein the accused had named a particular web-series, as his motivation and guiding force to murder the innocent girl. Furthermore, it has been claimed that OTT Platforms, social media platforms, and online news distribution sites have also caused propagation of hate speech and in certain cases; their content has caused dissatisfaction among certain groups because of their characteristics of maligning a particular community. All these issues are primarily responsible for the conceptualization of IT Rules, 2021. These rules aim  at striking a  balance between artistic freedom/freedom of speech & expression and reasonableness.

The Information Technology Act, 2000 is the parent act and sections 69-A(2), 79(2)(c) and 87 of the Act empower the government to frame rules with respect to which, the IT Rules, 2021 has been formulated. The rules have been framed in order to exclusively deal with “intermediaries” and “digital media”.  Rule 2 of the IT Rules, 2021 or its interpretation clause in subrule (k) has defined “digital media” as any content that can be transferred over the internet or computer network, with the help of intermediaries. For defining the term “intermediaries”, reliance has been placed on section 2(w) of the original Information Technology Act, 2000 which defines it as any entity which receives, stores or transfers digital content.

Upon a reading of the rules, it can be observed that through the Information Technology Rules, 2021, the legislature has aimed at regulating primarily three different types of intermediaries. Those intermediaries are OTT Platforms, Social Media and Online Press Media. This article aims at analyzing the background or need for such rules, the provisions that have been provided for in order to regulate the same, and the social, legal, commercial and political fallout of the rules, once they start functioning at their full strength.

The key provisions of the new IT Rules 2021 include changes with respect to age specific rating to media content, updated privacy policy, user agreement, etc. Following is a list of some key provisions in the IT Rules, 2021

Due diligence to be exercised by intermediaries: Rule 4 mentions guidelines to be followed by social media intermediaries with respect to both privacy policy and content. Rules 4(1)(a) & 4(1)(c) mandate these entities to promptly publish the user agreement, privacy policy and terms of service and to also remind the user about these, once every year. Further Rule 4(1)(b) lays down guidelines that the users must be made aware of in order to regulate the publication and distribution of content on these social media platforms.

This Rule directs the intermediaries to inform  users that any content should not be published or distributed on their platform that belongs to another person and to which the user does not have any right or is defamatory, obscene, pornographic, pedophilic, or invasive of another’s privacy, including bodily privacy, insulting or harassing on the basis of gender, libelous, racially or ethnically objectionable. Any content which infringes Intellectual Property Rights shall not be published. Any content which threatens unity and Sovereignty of India, or which incites commission of a criminal offence is also prohibited.

Increased involvement of judicial & executive bodies: Rule 4(1)(d) states that an intermediary, upon receiving actual knowledge in the form of an order by a court of competent jurisdiction or on being notified by the appropriate Government or its agency under clause (b) of sub-section (3) of Section 79 of the Act, shall not host, store or publish any information prohibited by any law in relation to the interests of the sovereignty and integrity of India: the security of the State; friendly relations with foreign States; public order; decency or morality; in relation to contempt of court; defamation; incitement to an offence, or information which violates any law for the time being in force.

Enhanced security measures for privacy: According to Rule 4(1)(f), privacy policy has to be reiterated at least once every year. Further, user data required for registration can be stored by an intermediary only for a period of 180 days, as mandated by Rule 4(1)(h). Other sub-rules also mandate the intermediaries to take all reasonable steps for securing individual data. As per Rule 4(1)(p), upon receiving a complaint, an intermediary must take down any published content that invades the privacy of a person. Further, under Rule 5(2), a mechanism has been developed in order to trace the originator of content.

Appointment of “grievance officer” & “compliance officer”: Rules 4(1)(n) & 5(a) mandate the appointment of a grievance officer and compliance officer respectively in the intermediaries in order to settle complaints. The name, designation and contact details of such persons must be published on the website/application of the particular intermediary.

Extensive guidelines for online press media: An applicable entity under Rule 7 has provisions for both self-regulating mechanism and authority or oversight of the government. The self-regulating mechanism has been divided into two levels, in the first level, appointment of a grievance redressal mechanism has been prescribed for. In the second level, an independent body for grievance redressal has to be constituted by the entity, which would consist of eminent people from the judiciary as well as the executive and legislature. Further, under the government oversight mechanism, the Ministry of Information & Technology has to constitute a team for grievance redressal with an “authorized officer” as its head, who cannot be a person below the rank of joint secretary, as per Rule 12. The preceding rules also guarantee reasonable interference of government for the purpose of regulating the business of these online press media.

Extended provisions through appendix and schedules: The Code of Ethics in the appendix attached to the rules imposes similar restrictions on online press media as those imposed under rule 4, on social media intermediaries.

Content classification: Provisions for content classification have been enshrined, and are applicable on both online curated content by press, films and other art content with web based release. Various forms of ratings like U, U/A, and A have been prescribed for, with age specific restrictions. Further, provisions have been made with respect to representation of discrimination, psychotropic substances, liquor, smoking and tobacco, imitable behavior, language, nudity & sex, fear, threat, horror or violence. Age restrictions further include prohibition of underage viewership of ‘A’ rated or similarly rated content, suitable for only adult viewership.

Author’s opinion

.Modernization has increased the dependence on technology to such an extent that now it is even sought after for purpose of entertainment. Any content which is published on the internet is accessible to people of every age group. This poses a particular problem for people belonging to younger age groups. The content available on internet is raw, unregulated, and sometimes even harmful for children. The provisions dealing with content classification,greater involvement of judiciary, executive and legislature are a blessing in disguise for proper regulation of online content. Further, the extensive grievance redressal mechanism is also a thoughtful step in addressing the complaints of consumers.

Freedom of speech and expression, prescribed as a fundamental right under Article 19(1) of the Constitution extends to online speeches and print media as well. This was reiterated by the Supreme Court in landmark judgments of Romesh Thapar v. State of Madras, 1950 & Shreya Singhal v. Union of India, 2015 by which the court struck down section 66-A of the Information Technology Act, 2000.

However, increased regulation by the government and provisions bypassing norms of end-to-end encryption, in order to trace the originator of the content, is an attack on people’s right to freedom of speech and expression. These provisions can also hinder free distribution of information on internet, where distribution of information can be considered as a necessary interpretation of expression. Further, the rules provide for excessive involvement of third parties in the functioning of private intermediaries and is inherently contradictory to the section 79 of the parent Act which provides immunity to intermediaries, provided that they observe due diligence. However, looking at Article 19(2) we can deduce that the reasonable restrictions under the Article would be at rescue to a content creator who thinks that his/her freedom of speech and expression has been infringed. These s new rules and the exercise of these rules would have to necessarily conform to the provisions of Article 19(2).

Hence, while the new rules can lead to loss of confidence among the content creators and might result in hesitation in the minds of content creators that whether they should go ahead with a sensitive or sensual topic or not, they need to have trust on the fact that even statutory provisions are bound by constitutional provisions. Additionally, the government has not explicitly banned any specific form ofcontent, till the time the content satisfies the legal requirements of due diligence and content classification. .

In conclusion, it can be said that there exists a very dicey game between merits and demerits of the new IT Rules, 2021 and neither of the two outshines the other. On one hand the rules are progressive in nature and have enhanced the levels of data protection of individual. On the other hand, it can also be claimed that the rules provide a major scope for a direct invasion on people’s privacy and an attack on freedom of speech and expression. However, the only hope for the content creators can be the provisions under Article 19(2) of the Constitution.

Further, the government cannot be blamed for undertaking certain stringent actions for protecting the social fabric of our country. While the restrictions are strict, this strictness is justified in light of the recent impact the OTT shows have had on the society. Further, the Rules do not bar judicial redressal in cases of misuse of these rules by the government. Hence, it is essential to see these rules not only in light of what negative impact they might have, but what were the actual problems which had led to the introduction of these rules, and whether the same problems are being solved by it or not.

  Support Us  

OpIndia is not rich like the mainstream media. Even a small contribution by you will help us keep running. Consider making a voluntary payment.

Trending now

- Advertisement -

Latest News

Recently Popular