Immediately upon its release on Amazon Prime Video on January 15, 2021, "Tandav" has been surrounded by controversy, contention, and conflict. This show has been under fire and has garnered several complaints from various factions of the Indian society. Even though an apology was issued by the creators of the show, and steps were taken to remove the controversial portions from the show, it appears that it did not quell the controversy at all.
Thereafter, the Justice for Rights Foundation filed a public interest litigation petition in the Delhi High Court wherein a plea was made for separate guidelines to regulate content such as Tandav, Sacred Games etc., on online streaming platforms, and the Ministry of Information and Broadcasting ("MIB") and Ministry of Electronics and Information Technology ("MEIT") informed the Delhi High Court that the Information Technology Act, 2000 ("IT Act") is a robust enough legislation, and on February 8, 2019, the High Court agreed with such submission and dismissed the said petition1.
The Tandav controversy re-ignited the pressure for increased censorship and introduction of criminal penalties for over the top ("OTT") platforms in India and the content they produce. Thereafter, the Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules 2021 ("2021 Rules") were notified on February 25, 2021, to supersede the Information Technology (Intermediary Guidelines) Rules 2011, under the IT Act. The 2021 Rules serve dual purpose of: (a) empowering the users of digital platforms to command accountability in case of infringement of their rights by establishing a three-tier grievance redressal mechanism; and (b) increasing the accountability of the social media platforms to prevent its misuse and abuse.
In addition to Tandav (and other content related controversies), the other triggers for the notification of the 2021 Rules were the rapid spread of fake news, morphed images of women, dishonest advertising, violent and graphic images / videos etc., and other such misuses of social media, and at the core of it, it appears that the 2021 Rules are looking to solve these issues.
The amendment dated November 9, 2020 to the Government of India (Allocation of Business) Rules, 1961 states that digital / online media will come under the ambit of MIB, hence Part III of the 2021 Rules "Code of Ethics and Procedure and Safeguards in Relation to Digital Media" will be administered by MIB. The main ingredients to this part, inter alia, are: (a) code of ethics, (b) three-tier grievance redressal mechanism, and (c) content classification, which are briefly explained below.
Compliance with the code of ethics - The code of ethics (contained in the Appendix to the 2021 Rules) are required to be complied with by the OTT platforms, news publishers and digital media ("Publishers") and sets out the following:
General Principles - Publishers shall not transmit any content which is prohibited under law or by a court of competent jurisdiction. Further, while deciding to feature / publish any content, Publishers shall consider the implications such content may have in terms of: (i) its effects on the sovereignty and integrity of the country; (ii) threatening, endangering or jeopardising the security of the country; (iii) being detrimental to the country's friendly relations with foreign countries; and (iv) inciting any violence or disturbing the maintenance of public order in the country.
This abovementioned criterion could be interpreted as being rather subjective; and may be difficult to satisfactorily determine whether specific content triggers any or all the above mentioned principles.
Content Classification - All content published by a Publisher shall be classified into the rating categories ranging between (i) U (suitable for children); (ii) U/A 7+ (suitable for persons aged 7 and above, and can be viewed by person under 7, with parental guidance); (iii) U/A 13+ (suitable for persons aged 13 and above, and can be viewed by person under 13, with parental guidance); (iv) U/A 16+ (suitable for persons aged 16 and above, and can be viewed by person under 16, with parental guidance); and (v) A (restricted to adults).
As described in the Schedule of the 2021 Rules, this classification must be based on: (i) context; (ii) theme; (iii) tone and impact; and (iv) target audience.
The 2021 Rules also set out guidelines2 in relation to issues that may apply in varying degrees to all categories of classification, and these issues should be read along with the classification guidelines mentioned herein above. As such, Publishers are required to give due consideration to issues related to: (i) discrimination; (ii) psychotropic substances, liquor, smoking and tobacco; (ii) imitable behaviour; (iii) language; (iv) nudity; (v) sex; and (vii) violence.
Display of Classification - The classification rating shall be displayed prominently, along with the description, informing the user about the nature of the content and any applicable viewer discretion, prior to the commencement of the content being viewed. Further, the Publisher shall provide control mechanisms such as parental locks, age verification mechanisms which are reliable, and the classification rating should be prominently included in all mediums of content, such as any print, televised material, online promotional material and/or publicity material for such content.
Restriction of access to certain curated content by a child - Publishers shall endeavour to restrict access to content with "A" rating for children by implementing appropriate access services.
Measures to improve accessibility of online curated content by persons with disabilities - Publishers shall endeavour to improve access of content published by it to persons with disabilities by implementing appropriate access services.
Grievance Redressal Mechanism. In terms of the press release issued by the Press Information Bureau on February 25, 2021, the 2021 Rules "primarily establish a soft-touch self-regulatory architecture, a code of ethics and three tier grievance redressal mechanism"3 for Publishers. The three tiers of grievance redressal mechanism are briefly set out below:
Tier 1 - Self-regulation by Publishers by appointment of a grievance office in India4 who would be a point of contact for any grievance related to the code of ethics, and shall be the nodal point of contact between the complainant, MIB and the self-regulating body;
Tier 2 - Creation of independent self-regulation bodies, consisting of industry experts and headed by a retired judge of the Supreme Court / High Court and registered with the MIB5; and
Tier 3 - Establishment of an inter-departmental committee by MIB, which would hear and examine grievances and issue recommendations to the MIB. However, it would not pass any order itself6.
In addition, there is also an oversight mechanism, in which, if the Publisher fails to comply with any advisory by the self-regulated body created as per Tier 2 mentioned hereinabove, then the self-regulating body may refer such grievance to the oversight mechanism, which would be set up by the Government.
The timing of the notification of the 2021 Rules and the current uproar in terms of the content cannot go unnoticed. However, it would be a great time for the Government, intermediaries, Publishers, policy makers, users and stakeholders to collaborate, co-operate and create a new ecosystem for digital content to truly thrive in India. The legal framework must evolve in tandem with the rapidly evolving digital media.
2. Part II under Chapter III of the 2021 Rules.
4. Rule 11 of the 2021 Rules.
5. Rule 12 of the 2021 Rules.
6. Rule 14 of the 2021 Rules.
Originally published 20 July, 2021
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