Ashok Dhingra and Sonia Gupta1

Finally, India has tamed the lion! Or infact has India really tamed the lion? The Supreme Court of India thinks otherwise.

First the history so far.

In pursuance of resolution A/RES/51/162 dated January 30, 1997 adopted by the General Assembly of the United Nations, and the model law on electronic commerce adopted by the United Nations Commission of International Trade Law, Indian Government enacted the Information Technology Act, 2000 ('IT Act'). At the time of enactment of the IT Act primary objective was to give effect to the United Nations resolution and to promote efficient delivery of government services by means of reliable electronic records. The IT Act has been amended many times in the last twenty years to keep pace with the evolution of information technology and digital media walking into every walk of human life.

The IT Act is a complete code which provides for legal frame work for recognition of electronic records and digital signature; electronic governance; attribution of electronic records to its originator2; validity of contracts formed through electronic means; penalties for failure to protect sensitive personal data or information dealt by a body corporate; punishment for violation of privacy of any person without his or her consent, publishing of obscene material; etc. In addition, the IT Act also empowers the Federal Government to issue directions to an appropriate government agency to intercept or monitor or decrypt; block for public access any information or collect data of information on a computer network. The IT Act also provided protection to intermediaries from liabilities for any third-party information, data, or communication link made available or hosted by it.

The Federal Government has notified various rules to give effect to the IT Act, including the Information Technology (Intermediary Guidelines) Rules 2011 ('Earlier Intermediary Guidelines'), which has now been replaced with the Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, 2021 ('Intermediaries and Digital Media Rules') on February 25, 2021, to regulate intermediaries and digital media.

The term 'intermediary' is defined under the IT Act in a very expansive way - intermediary, with respect to any particular records, means any person who on behalf of any other person receives, stores or transmits that record or provides any service with respect to that record and includes telecom service providers, network service providers, internet service providers, web-hosting service provider, search engines, online-payment sites, online-auction sites, online-market places and cyber cafes.

While the term intermediary as defined in the IT Act included various types of service providers it did not include digital media and news websites within its scope. Hence, digital media and news websites were enjoying complete freedom of publishing content on account of lack of regulatory framework. The issue here is not that digital media was doing something wrong. While working within the frame work of local laws, some digital media entities are publishing content which is on the outermost layer of tolerance of Indian society with regard to extent of permissibility of sexual, religious and political content. From time-to-time voices had been raised to bring digital media under regulatory scrutiny for the content published by them.

And then humanity has been hit by COVID-19 and people were forced to stay home and as a natural corollary watched digital media to the fullest appetite, which also made people and the regulators realise need to regulate digital media content. Hence, notification of the Intermediaries and Digital Media Rules replacing the Earlier Intermediary Guidelines.

The Intermediaries and Digital Media Rules introduced the concept of digital media - an intermediary or publishers of online news & current affairs content or online curated content. Thus, with one stroke of legislative brush the Federal Government changed rules of the game and not only brought online publishers of curated content but also news and current affairs digital content provider under oversight. The Intermediaries and Digital Media Rules separately provided for due diligence to be observed by entities forming digital media and three-layered oversight mechanism largely self-regulated but finally administered by the Indian Information and Broadcasting Ministry ('I & B Ministry'). While it was widely expected that the online curated content publishers are going to be regulated, the biggest surprise is bringing publishers of news and current affairs content under the ambit of new rules and taking away protection granted to intermediaries under Section 79 of the IT Act of exemption from liability to an intermediary of any third-party data, communication link made available or hosted by such intermediary.

Let us pause here and take a look at global scenario on regulation of digital media.

Australia led the field by bringing publishers of online curated content under regulation by amending the Broadcasting Services Act, 1992 in the year 2000 and providing for mandatory license holding, creating Classification Board for the purpose of classification of content and extra-territorial jurisdiction and development of Industry Code by industry bodies and associations. China has banned overseas Over The Top ('OTT') publishers of online curated content and enacted the Ecological Governance of Network Information Content, 2019, which provides for network information content producer and content they produce to be in consonance with the public interest and national interest, etc. and not to produce any content having a negative impact. Singapore has brought OTT and video on demand service under regulation in 2018. India is probably some of the early countries to regulate publishers of online curated content. Thus, while in large economies like USA and European Union, OTT players are having a field day, countries like India and China having the biggest population and subscriber base has regulated OTT industry.

Publishers of news and current affair are governed by Norms of Journalistic Conduct of the Press Council of India, which is an industry body. Now, the Intermediaries and Digital Media Rules have also brought publishers of news and current affair contents publishing on their websites under its ambit. This is for the first time that publishers of news and current affair contents are being regulated by the Federal Government. India always advocated free press and freedom of speech which are fundamental rights enshrined in the Constitution of India. Now, the Federal Government has been granted unfettered powers by bringing publishers of news and current affair contents under oversight

Publishers of online curated content have also been brought under the ambit of the Intermediaries and Digital Media Rules and oversight by the I & B Ministry and have to classify content based on violence, nudity, sex, language, drug and substance abuse and horror. In addition, such entities have to take into consideration while publishing content, implications on sovereignty or integrity of India, or India's relations with foreign countries or content which jeopardises security of the State, which are wide terms.

Further, protection granted to intermediaries under Section 79(1) of the IT Act - providing exemption from liability to an intermediary of any third-party data, communication link made available or hosted by an intermediary - will not be applicable, if such intermediary fails to abide by the Intermediaries and Digital Media Rules. This may cause significant exposure to intermediaries.

Additionally, intermediaries are mandatorily required to provide information and or assistance to the Government authority within 72 hours of receipt of written request for investigative or protective or cyber security activities. Thus, intermediaries need to modify their computer resources, privacy policy and also may not be able to offer end-to-end encryption to users, and their cost of compliance will go up significantly. In a news article on March 23, 2021 it is mentioned that the Federal Government has proposed to a global messaging app entity to assign alpha-numeric hashtag to every message sent through its platform as solution to identify originator any of message in compliance to the Intermediaries and Digital Media Rules. This may necessitate tweaking with software and hardware and may entail big cost to messaging apps entities.

The Supreme Court Bench hearing a matter concerning OTT curated content on March 5, 2021 observed that the Intermediaries and Digital Media Rules lacks teeth as there is no provision therein for prosecution or fine of such entities. If the Apex Court of India is of this view, the Government will be happy to oblige and bring in stringent provisions. Whether, this may or may not help cause of freedom of speech, only time will tell. Of course we are looking at a very different OTT market with the Government looking over at digital media at this time of push for free speech.

Footnotes

1.Authors are partners with Ashok Dhingra Associates, Gurgaon, India and views are personal.

2.Defined in Section 2(za) of the IT Act - "originator means a person who sends, generates, stores or transmits any electronic message or causes any electronic message to be sent, generated, stored or transmitted to any other person but does not include an intermediary"

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