Highlights on India’s new guidelines for Digital Media, Social Media, and OTT platforms

 Background

On February 25 2021 Government notified new guidelines for the Social Media, Digital Media, and OTT platforms called Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021.

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Due to the issues and concerns related to accountability, ownership rights, and absence of transparency with regard to digital media, the OTT new guidelines were framed along with that for social media and other digital media.

These were in the exercise of powers under section 87 (2) of the Information Technology Act, 2000 and in supersession of the earlier Information Technology (Intermediary Guidelines) Rules 2011.

To have a ‘harmonious and ‘soft-touch oversight mechanism’ (as these OTT new guidelines and other digital media rules have been termed), both the Ministries of Electronics and Information Technology and Information and Broadcasting had taken up a detailed discourse at the time of forming these new rules.

The fact-check mechanism is required to prevent the spread of false news. As there have been no strong complaint and redressal mechanism for ordinary users, these new rules for OTT platforms and social media guidelines empower them with a robust mechanism for the purpose and timely grievance resolution.

This is keeping in mind the continuing ‘journalistic and creative freedom’, liberality along with ‘gentle’ self-regulatory framework.

Highlights on the Rules

There are three parts to the overall guidelines. Part 1 covers the basics. The rules are covered under part 2 and part 3.

Ministry of Electronics and IT shall control Part- II and the Ministry of Information and Broadcasting shall control rules related to the Code of Ethics and procedure and safeguards in relation to digital media (Part-III).

Part I – Preliminary

This part contains the Short Title and Commencement and the Definitions.

Part II – Due Diligence By Intermediaries & Grievance Redressal Mechanism

There are two terms mentioned social media intermediary and significant social media intermediary.

The platform for the online interaction between two or more users who can use its services to create, upload, share, disseminate, modify or access information.

Significant social media intermediary means the social media intermediaries with the registered number of users above the central government notified threshold.

Due diligence by an intermediary:

The following due diligence must be followed by them both.

publish the rules and regulations, privacy policy, and user agreement for access or usage of its platform on its website, mobile-based application, or both.

inform in above-mentioned pages about not to host, display, upload, modify, publish, transmit, store, update or share any information that – belongs to someone else; the user does not have any right to; obscene, defamatory, pornographic, insulting, or harassment based on gender, etc; harmful to children; infringing; violates the law for the time being in force; misleads about the origin of the message; intentional communication of patently false or misleading information; impersonating; etc.

inform its users, at least once every year, that non-compliance of the above-mentioned pages would result in termination of the access or usage rights immediately or removal of the non-compliant information or both, as per the case.

(Other listed due diligence under this point to be followed by the intermediaries while discharging its duties)

Grievance redressal mechanism of intermediary:

As per the new social media rules in India-

the intermediary has to publish the name of the grievance officer on the website or app or both with his contact details

describe the mechanism for making the complaint related to its platforms

grievance officer has to acknowledge the complaint within 24 hours and resolve it within 15 days from the date of complaint registered

Take action within 24 hours from the time of the complaint registered and remove/disable the inappropriate image or content of an individual in form of nudity, artificially mope images, etc.; this is to ensure online safety and dignity of users, especially women.

enable a mechanism for the above through which the individual can submit the details related to that content

Additional due diligence for Significant Social Media Intermediary:

Overall the rules shall be effective from the date of their publication in the gazette.

The additional due diligence for significant social media intermediaries, which shall come into effect after 3 months of publication of these new social media rules in India.

To ensure compliance with the rules, a chief compliance officer who is an Indian resident has to be appointed

For 24×7 coordination with the law enforcement agencies, a nodal officer has to be appointed

To carry out the grievance redressal mechanism a resident grievance officer who is a resident of India has to be appointed

The service provider shall make the identity for the content visible of the person for which they are getting direct financial benefit in return to increase its visibility, influence, or targeting the receiver of that information; or if that person has copyright, or has an exclusive license, or with regard to which the contract was made to stop its publication or transmission.

put in effect the technology-based measures to identify the content removed previously or related to the previously mentioned inappropriate contents

Intermediaries primarily providing the messaging services have to enable “identification of the first originator of the information” to prevent, detect, investigate, prosecute or punish for an offense related to sovereignty and integrity of India, the security of the State, friendly relations with foreign states, or public order or of incitement to an offense relating to the above or in relation with rape, sexually explicit material or child sexual abuse material. As result will be punishable with imprisonment for a period of not less than five years.

Display the physical contact address in India its website or mobile app or both.

Enable a voluntary user account verification for the ones who wish to verify their account voluntarily

Let the users give reasons and justifications before any actions are taken on them such as the removal of their account. They need to be notified before taking any such action also let them dispute the actions.

In the interest of the sovereignty and integrity of India, public order, friendly relations with foreign countries, etc. the platform shall remove any such content upon the notice from the government authorized bodies.

Upon the failure to abiding by the rules, the provisions of sub-section (1) of section 79 of the Act shall not apply to such an intermediary. They will be punished as per the law in force at that time including the provisions of the Act and the Indian Penal Code.

Part III – Code Of Ethics & Procedure And Safeguards In Relation To Digital Media

Many complaints and concerns were raised by many about the content on the digital media and OTT platforms such as netflix, amazon prime, etc. Thus, these OTT new guidelines shall be put into practice.

OTT players need to create a ‘self-regulatory mechanism’. As mentioned earlier, these OTT new guidelines are meant to develop ‘a soft-touch self-regulatory architecture and a Code of Ethics’.

As per OTT new guidelines, a 3 tier grievance redressal mechanism for news publishers, OTT Platforms, and digital media needs to be established.

The rules in Part 3 directs the platforms as follows:

These need to be followed by the OTT platforms like netflix, online news platforms, and digital media entities.

The OTT platforms or the publishers of the online curated content need to self-classify their content. The self-classification needs to be into five age-based categories- U (Universal), U/A 7+, U/A 13+, U/A 16+, and A (Adult).

The Platforms need to put into effect the parental locks for content classified as U/A 13+ or higher.

Also, put into effect the reliable age verification mechanisms for content classified as “A”.

They need to visibly display the classification rating for each content in the beginning in a focused manner along with a content descriptor. Also, specify the nature of the content and notify if viewer description is applicable

As per the rules, a 3-level classification grievance redressal mechanism has been developed with various self-regulation levels.

Level-I: Self-regulation by the publishers

Redressal by the Grievance Redressal Officer appointed, who needs to be based in India. He/She needs to take the necessary steps within 15 days.

Level-II: Self-regulation by the self-regulating bodies of the publishers

To oversee the abidance of the rules by the self-regulatory bodies of publishers to the Code of Ethics. Also, it has to address the grievances which are not redressed within 15 days.

Such a self-regulatory body shall be appointed consisting of a retired judge of the Supreme Court, a High Court, or an independent eminent person. It may not have more than 6 members. It needs to be registered with the Ministry of Information and Broadcasting. This body will oversee the adherence by the publisher.

Level-III: Oversight mechanism

This will be developed by the Ministry of Information and Broadcasting.  It would include a charter for self-regulating bodies, with Codes of Practices, an Inter-Departmental Committee for hearing grievances, etc.

The digital news media and current affairs publishers are supposed to be following the journalistic conduct of the Press Council of India and the Programme Code under the Cable Television Network Act; already applicable to print and TV. Therefore, only fair points have been proposed.

summing-up

OTT new guidelines, as well as digital media & new social media rules in India mostly emphasize creating a self-regulatory framework to protect the interest of the users and overall adhere to the Constitution and laws of India.

The government acknowledges the empowerment rendered by the social media companies to the ordinary users but they also need to be accountable for the abuse and misuse taking place.

Source and detailed guidelines in Ministry Of Electronics And Information Technology Notification: https://www.meity.gov.in/writereaddata/files/Intermediary_Guidelines_and_Digital_Media_Ethics_Code_Rules-2021.pdf

Credit paykun