The central government recently released the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021. Click here to know more.
In this context, here is a look at the opportunities it offers and the concerns it has raised.
How do the Rules benefit?
The need for the IT Rules can hardly be disputed.
They make accountable the “significant” internet platforms (those above 5 million users) such as Facebook, Google and WhatsApp.
These have so far enjoyed immunity under Section 79 of the Information Technology Act under the ‘safe harbour’ clause.
The world over, these tech giants have been associated with breach of data, national security and individual privacy.
Besides, they have hosted incendiary stuff that can disrupt peace and harmony.
Secondly, the OTT platforms such as Amazon Prime, Netflix and Hotstar, which carry curated content without certification can no longer continue in this manner.
In a positive move, they will have to grade their content under various types of adult and child viewing.
They will also have to adhere to the grievance redressal mechanisms.
These checks and balances are necessary and go a long way in streamlining the content.
What are the concerns?
Free speech - The rules force digital news publishers and OTT services to adhere to a cumbersome three-tier structure of regulation.
It comes with a government committee at its apex.
This, in itself, is unprecedented in a country where the news media have been given the space all along to self-regulate.
This has been in place based on the understanding that any government presence could have an effect on free speech and conversations.
The rules might have serious implications for freedom of expression and right to information of online news publishers and intermediaries.
Regulation - Any person having a grievance regarding content published by a publisher in relation to the Code of Ethics may furnish his/her grievance.
The grievance mechanism established by the publisher will receive them.
So, literally anyone could force a digital platform to take up any issue.
To note, many of the digital publishers are small entities.
The regulations thus impose a compliance burden on such entities.
Moreover, the Rules allow government to influence the appointment of panel members in the higher level regulatory bodies.
All these leaves way for all kinds of interventions, and the potential for misuse is enormous.
Social media platforms - The new rules have increased the compliance burden for social media platforms too.
Such platforms in the messaging space will have to “enable the identification of the first originator of the information on its computer resource” based on a judicial order.
Thus, the rules require messaging apps such as WhatsApp and Signal to trace problematic messages to the originator.
The triggers for a judicial order that require such an identification are serious offences.
Nevertheless, it raises concerns as these apps have their messages encrypted end-to-end.
Classification - Digital news media has been unfairly and arbitrarily clubbed with OTT platforms and subjected to the same set of rules.
Moreover, the purview of the IT Act, 2000, has been expanded to bring digital news media under its regulatory ambit without legislative action.
This combination does not correspond with the provisions of the IT Act, and opens itself to legal challenge.
Also, the new rules pertain only to digital news media, and not to the whole of the news media.
This raises concerns as the former is increasingly becoming a prime source of news and views.
What are the likely implications?
Some amount of tightening of policy is inevitable given the new challenges.
But the government tries to implant itself in the grievance redress process.
It otherwise expects the platforms to share more information.
Both of these could prove counterproductive in a country where there is still no data privacy law.
The citizens do not have ways to guard themselves against excesses committed by any party.
On the other hand, the laws to combat unlawful content are already in place.
What is required is their uniform application.
Instead, the tight regulatory mechanism could only cost creativity and freedom of expression.
