Author: Darsh Parikh, II year LL.B. from Jitendra Chauhan College of Law (JCCL), University of Mumbai.
Introduction
The Delhi High Court on June 28, 2021, directed the central government to ensure that all social media platforms comply with the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, which came into effect on May 26, 2021. The rules aim to regulate social media platforms, digital news media, and OTT (over-the-top) streaming services. This move by the court is the latest in a series of developments that highlight the growing importance of media law in India.
One important issue that arises with the new rules is the potential for censorship and infringement of freedom of expression. Some critics have argued that the rules give too much control to the government over online content and could be used to stifle dissent and criticism. Others have raised concerns about the lack of clarity and specificity in the rules, which could lead to arbitrary and inconsistent enforcement. The challenge for policymakers and regulators will be to strike a balance between protecting users from harmful content and ensuring that the rights of free expression and dissent are safeguarded.
Background: The Need for Regulation
The need for regulation in the media sector in India has been recognized for many years. India is the world’s largest democracy, and the media plays a crucial role in informing the public, shaping public opinion, and holding those in power accountable. However, the rise of social media platforms, digital news media, and OTT streaming services has created new challenges for regulation. These platforms operate in a globalized, decentralized, and rapidly changing environment that poses unique challenges for regulators.
The lack of regulation has led to a number of issues in the media sector in India. For example, social media platforms have been used to spread hate speech, fake news, and disinformation, leading to violence and social unrest. Digital news media has also faced criticism for biased reporting and sensationalism. OTT streaming services have been accused of promoting violence, vulgarity, and obscenity.
Recently, certain web shows on OTT platforms such as Amazon, Netflix, Altbalaji etc. have been subjected to public outrage. The government, in response to complaints received from civil society actors, Chief Ministers, and public stakeholders about the negative impact of content on OTT platforms, has formulated new guidelines. These guidelines require OTT and digital news platforms to adhere to a code of ethics, self-classify their content, and establish a three-level grievance redressal mechanism.
The first level entails self-regulation by the publisher, the second level involves a six-member self-regulatory body led by a retired judge of the Supreme Court, High court or an eminent person, and finally, at the third level, the Ministry of Information and Broadcasting will formulate an oversight mechanism that will publish a charter for self-regulating bodies, including codes of practices and establish an Inter-Departmental Committee for hearing grievances. Additionally, the government will have the power to review and block any content that does not follow the guidelines.
The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021
The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, aim to address these issues by regulating social media platforms, digital news media, and OTT streaming services. The rules require social media platforms with more than 5 million users to appoint a resident grievance officer, a chief compliance officer, and a nodal contact person in India. The rules also require social media platforms to remove certain types of content, including defamatory content, within 36 hours of receiving a complaint. Additionally, the rules require digital news media and OTT streaming services to adhere to a code of ethics and to establish a grievance redressal mechanism.
The Delhi High Court’s Directive
The Delhi High Court’s directive to the central government to ensure compliance with the IT Rules, 2021, is significant for several reasons. Firstly, it emphasizes the importance of regulation in the media sector. Secondly, it shows that the judiciary is taking an active role in ensuring compliance with the rules. Thirdly, it highlights the challenges of enforcing the rules in a rapidly changing environment.
The High Court’s directive came in response to a petition filed by several digital news media organizations challenging the constitutionality of the IT Rules, 2021. The court rejected these arguments and upheld the constitutionality of the rules. The court also noted that the rules were necessary to protect the public interest and to ensure that social media platforms, digital news media, and OTT streaming services operate in a responsible and accountable manner.
Challenges and Opportunities
The IT Rules, 2021, are a significant step towards regulating the media sector in India. However, their implementation and enforcement pose significant challenges. The decentralized and global nature of social media platforms, digital news media, and OTT streaming services makes it difficult to regulate them effectively. The rules also raise questions about the balance between freedom of speech and expression and the need to regulate harmful content.
The proposal to require more disclosure by online platforms may have unintended consequences in a country like India that lacks a comprehensive data protection law to safeguard individuals from abuses by any actor. Therefore, it is urgent to accelerate the approval of the personal data protection bill, which has been pending since 2019. If additional regulation is deemed desirable after that, it should be enacted through parliamentary deliberations instead of delegated rule-making authority under Section 69A of the IT Act.
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