The Government has framed new rules to hold social media, OTT is accountable for content.
Various social media companies such as Twitter, Facebook, WhatsApp, and other OTT players like Amazon Prime, Hotstar, Zee5, SonyLiv, Netflix, will soon have to stick to higher accountability standards in India. The publishers of news are also covered by the new intermediary on the digital media.
The rules to be implemented call for a three-tier regulation mechanism for various OTT platforms. All these platforms like Netflix, YouTube, Amazon Prime, Zee5, etc. require to self-classify their content into 5 categories which are based on the suitability of the ages.
On Thursday, the Centre notified new guidelines for the intermediaries in “soft touch oversight” rules. According to them, this action was needed to hold social media and various other companies accountable for “misuse and abuse”. Strong grievance mechanisms will be required to be set up by these Big Tech Platforms. There will be a need of appointing executives to coordinate with law enforcement in India.
The intermediary Guidelines and Digital Media Ethics Code has been notified regarding the Rules 2021 by the Ministry of Electronics and IT. Under the Information Technology Act 2000, the rules have been framed and will supersede the 2011 guidelines for internet intermediaries.
Who Is Covered: According to the New Rules?
According to the new rules, the distinction between the social media platform is based on the number of users. Based on the threshold of the user base, the classification will be done. The threshold of the user base is yet to be notified. This will determine whether the entity is amongst the following two:
- Social media Intermediary
- A significant social media intermediary.
However, the latter will be required to follow additional due diligence. For OTT and the online news platforms, an ethics code is laid down, which will be administered by the Ministry of Information and Broadcasting.
The Compliances by the Social Media Platform
According to the government, all the social media Intermediaries will have to increase their diligence standards. They will have to make amends in their privacy policies and agreements which will notify the users to not upload, publish, share information that is defamatory, obscene, patently false or misleading, etc. A grievance redressal mechanism will be set up for resolving the user complaints. The Appointment of a grievance officer is also required to acknowledge the complaint within 24 hours and it must be resolved within 15 days from its receipt. The safe harbor case due diligence under the IT Act will not be applied in case the due diligence is not followed by the intermediary.
They will also have to take down unlawful information based on a court’s direction or a government agency’s order. However, the significant social media intermediaries will need to do more.
The ministry said that they are no longer just intermediaries but often publishers of information while pointing towards the vast user bases enjoyed by various social media platforms.
The rules have made way for a user threshold, which is not specified as yet. If the platform crosses the threshold, it will have to:
- Appoint a resident nodal contact person, he/she will have to be available 24*7 with law enforcement agencies.
- Appoint an officer for resident grievance.
- Publish a monthly compliance report. This report should involve the detailing of the complaints received, actions are taken on those complaints, and various contents removed proactively by the significant social media intermediary.
Are There More Amends?
Yes, there’s more for the social media intermediaries who excel in providing messaging services. These will be required to enable the identification of the first originator of the information for various purposes like:
- Various Prevention, detection, investigation, prosecution, or punishment of an offense which is related to the sovereignty and integrity of India, the security of the state, various friendly relations with foreign states.
- Public order or incitement to an offense which is relating to the above or in relation with rape, sexually explicit material, or Child sexual abuse material is punishable with imprisonment for a term of not less than five years.
However, these platforms will not be required to disclose the contents of any message or any sort of information of the first originator.
Various Ethics Code for Digital News, OTT Players
OTT platforms have to self-classify content based on the age into these 5 categories:
U(Universal), U/A7+, U/A13+, U/A16+, and A(Adult). They will be required to implement various parental locks for certain content and the display of the rating for all the programming.
Publishers of news on various Digital Media would be required to observe norms of journalistic conduct of the Press Council of India, as well as the program code under the Cable Television Networks Regulation Act, which is quite similar to their print and TV peers.
Critics and Expertise Words
The fine print of the rules is yet to be made public, various other experts stated that the regulation of OTT and news media platforms through a proxy is grossly unconstitutional.
The ethics code i.e. the oversight mechanism is being created without any sort of clear backing legislatively. This will increasingly perform the functions which are similar to the ones played by the Ministry of Information and Broadcasting for TV regulation. These were the points kept forward by the Internet Freedom Foundation in its preliminary commentary on the rules.
One of the concerns which are raised here is the traceability framework for various messaging platforms, such as WhatsApp, Telegram, Signal, and others as well. These regulations will not only be applicable on these but also on the platforms which may not have a physical presence in India but various business activity is carried out in India by targeting Indian Consumers, stated in an email by Rajat Prakash, a managing partner at Athena Legal.
The new rules might break the end-to-end encryption due to the introduction of the traceability mechanism. IFF has also stated in one of its commentaries that the previous proposals that sought to implement the traceability in a manner that is compatible with end-to-end encryption have even shown vulnerable spoofing where the bad actors can be modified falsely into framing an innocent person.
In due course of time, the Ministry shall formulate an oversight mechanism. It shall also publish a charter for self-regulating bodies, which includes codes of practices. It shall also establish an Inter-Department Committee for Hearing the grievances.
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