The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 ("New Rules") were notified by the Ministry of Electronics and Information Technology on 25th February 2021. Part III of the New Rules introduce provisions for the regulation of digital media along with a code of ethics. This article analyses the impact of Part III of the New Rules. In the first article of a two-part series, we analysed Part II of the New Rules.1
Overview of Part III of the New Rules
Part III of the New Rules, for the first time, expands the net of the Information Technology Act, 2000 ("IT Act") to govern "publishers of news and current affairs content" and "publishers of online curated content" (collectively referred to as "Publishers"). Publishers will comprise those that operate within India and those who engage in systematic business activity in India.
Part III of the New Rules require Publishers to (i) adhere to the "Code of Ethics" annexed to the New Rules and (ii) address any grievances through a three-tier regulation model. The Code of Ethics cautions against various types of content ranging from "not in good taste", "half-truths" to content that is "likely to incite violence or disturb the maintenance of public order". Notably, unlike intermediaries in Part II of the New Rules, compliance does not result in any safe harbour. Publishers will continue to be liable for the infringement of any law.
The three-tier regulation model is elaborated below –
Level I: Self-regulation by Publishers
All Publishers are required to inform the Ministry of Information and Broadcasting ("IB Ministry") of its operations and appoint a grievance officer based in India ("GO") whose contact details are displayed publicly. Publishers who have provided information to the IB Ministry may be provided with a visible mark of verification displayed on platforms of intermediaries. The GO is required to acknowledge complaints within 24 (twenty-four) hours and dispose them of within 15 (fifteen) days. All Publishers are required to be members of a self-regulating body and abide by its terms and conditions.
Level II: Regulation by self-regulating body
If the complainant is not satisfied or the complaint is not disposed of within 15 days (fifteen) by GO, the complainant can approach the self-regulating body. The self-regulating body will be headed by a retired Supreme Court or High Court Judge or an independent eminent person from the field of broadcasting, entertainment, child rights, human rights or such other relevant fields. The self-regulating body can have up to 6 (six) members in addition to the head.
Each self-regulating body will be registered with IB Ministry after scrutiny. The self-regulating body's primary functions are (i) to ensure compliance of its members with the Code of Ethics and (ii) to hear complaints/appeals against the Publishers. The self-regulating body shall require compliance within a stipulated time period, failing which the complaint/appeal will be referred to the oversight mechanism.
While disposing of a complaint or appeal, the self-regulating body can issue guidance or advisories to the Publishers –
- Warning or reprimanding them
- Requiring an apology
- Requiring a warning card or disclaimer to be added
- Refer cases that merit deletion or modification to prevent incitement of any cognizable offence relating to public order or any grounds set out in Section 69 A of the IT Act.
The self-regulating body has additional powers while dealing with publishers of curated content. Publishers of curated content are required to classify content in the following categories:
- "U" for all ages,
- "U/A 7+" for 7 (seven) years and above with parental guidance,
- "U/A 13+" for 13 (thirteen) years and above with parental guidance,
- "U/A 16+" for 16 (sixteen) years and above with parental guidance and
- "A" for 18 years and above.
The Publishers of curated content are obligated to classify this based on various factors such as themes, violence, nudity etc. Additionally, Publishers of curated content are required to implement the classification through a reliable age verification mechanism. While dealing with Publishers of online curated content, the self-regulating body can direct reclassification or modification to content descriptor etc.
Level III: Oversight mechanism
The oversight mechanism stipulates setting up of an inter-departmental committee consisting of representatives from the IB Ministry, Ministry of Women and Child Development, Ministry of Law and Justice, Ministry of Home Affairs, Ministry of Electronics and Information Technology, Ministry of External Affairs, Ministry of Defence, and others including domain experts.
The inter-departmental committee will broadly oversee the publication of charters of self-regulating body in accordance with the Code of Ethics. It can hear unresolved complaints and references concerning the Code of Ethics. After hearing the Publishers, the inter-departmental committee shall make recommendations. Inter-departmental committee has similar powers as the self-regulating body. One significant addition is that the inter-departmental committee can recommend deletion or modification to prevent incitement of any cognisable offence relating to public order or any grounds set out in Section 69 A of the IT Act to an authorised officer.
With the approval of the Secretary of IB Ministry, the authorised officer has the power to order deletion or modification, as appropriate for a specific piece(s) of content either on the recommendation inter-departmental committee or at his instance in case of emergency.
Notably, these powers are in addition to the Information Technology (procedure and safeguards for blocking for access of information by the public) Rules, 2009 ("Blocking Rules"). Lastly, to infuse transparency, Publishers and self-regulating bodies must publicly display and update information about all complaints.
We have segmented our analysis into three limbs, namely: (i) News media, (ii) Curated content and (iii) Emergency blocking procedures.
I. News Media
Provisions relating to "publishers of news and current affairs content" have three broad key issues as discussed below:
- Overboard definition: The provisions apply to all online news publishers irrespective of scale, nature of reporting etc. In its present form, the provisions cover different media outlets of varying scales such as online local news portal run by individuals, news portals dealing exclusively with sports news, and the online presence of established media outlets alike. The inclusion of news aggregators as news publishers questionable. The New Rules may not have adequately considered that the functions of news aggregators are closer to that of an intermediary as many of these platforms use algorithms to display the latest trending news items by various online portals. This widely worded definition is problematic as it casts onerous obligations such as the appointment of GO, publishing monthly updates about complaints received even on small scale online news portals that may have a readership of a few hundred.
- Application to foreign media: The New Rules apply to the online presence of foreign media as well. It will be interesting to see how any directions, especially those relating to deletion or modification of content, will apply to such entities. It is unclear if the foreign media will be required to action content only within the territory of India or globally. Additionally, if any foreign media refuses to comply with the New Rules, would that result in an overall ban?
- The "chilling effect" on free press: Thirdly, the key issue plaguing the New Rules and Code of Ethics is the possible chilling effect on the free speech of the media. While other jurisdictions like Australia have also set up self-regulation by a voluntary body of peers, Australian self-regulation does not involve the State, unlike in the New Rules. The New Rules require all Publishers, self-regulating bodies to be registered with and scrutinized by IB Ministry. Additionally, the inter-departmental committee has vast supervisory powers to hear complaints or references. Strangely, no express provisions have been provided for (i) Publishers to appeal against any recommendation of the self-regulating body and (ii) procedure to resolve any dissent within the self-regulating body while issuing recommendations.
II. Curated Content
Provisions relating to "publishers of online curated content" are presently ambiguous when it comes to the standard for classification but are likely to evolve over time. The New Rules came in force after a recent controversy that emerged around a web series over alleged inappropriate content wherein the head of the platform that displayed the content was embroiled in legal proceedings.2 The ambiguous norms of classification coupled with the wide-ranging powers of the self-regulating body and inter-departmental committee may deter the creative liberties of artists and have chilling effect on their free speech. Additionally, the feasibility of accurate implementation of age verification remains doubtful.
III. Emergency Blocking Procedures
The emergency blocking procedure under Part III of the New Rules deviates significantly from the Blocking Rules. This is because it fails to provide the procedural safeguard of according an opportunity to be heard post-facto in case of emergency blocking. However, it must be noted that unlike the Blocking Rules, there is no confidentiality requirement in relation to proceedings under Part III of the New Rules. This is a welcome development as it infuses transparency and accountability in the exercise of powers relating to deletion, modification, and content removal.
In our view, regulation of digital news media was inevitable, especially with global concerns around misinformation and fake news. However, the IT Act does not deal contain any provisions dealing with the governance of Publishers. Several petitions3 have been filed challenging Part III of the New Rules as ultra vires and promulgated without any public consultation. As such, Part III of the New Rules does not have any nexus to the object and scheme of the parent statute, i.e., IT Act and merits judicial review on this aspect4. If implemented in its current form, the ambiguities around classification of content, practicality of age verification will be areas of concern and require evolution of jurisprudence as well as technology. The exercise of wide adjudicatory powers by self-regulating body and oversight mechanism will have a lasting impact on artistic freedom and digital new reporting in the coming years. It will be worthwhile to see whether the self-regulation model with the State's intervention results in self-censorship by Publishers.
* The authors would like to acknowledge the research and assistance rendered by Harshvardhan Korada, a student of the Amity Law School, Delhi.
1. Redefining intermediary safe harbour: Free speech and privacy concerns in India: read more here.
2. SC grants protection to Amazon Prime Video India head Aparna Purohit in FIRs lodged over Tandav row-Entertainment News , Firstpost: read more here.
3. Live Law Media Private Ltd. and Ors. v. Union of India and Anr. W.P. (Civil) No. 6272 of 2021; Foundation for Independent Journalism & Ors. v. Union of India & Anr. W.P.(C) 3125/2021 & CM Appl. 9491/2021; 'Chilling Effect on Media': The Quint Challenges New IT Rules: read more here; Why The Wire Wants the New IT Rules Struck Down: read more here
4. Cellular Operators Association of India and Ors. v. Telecom Regulatory Authority of India and Ors., (2016) 7 SCC 703
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