OTT Regulations, 2021: An Analysis

Introduction

With the continuous advancements in technology, online platforms have left no stone unturned to tap into this dynamic space. Social Media platforms like Instagram, Facebook and Twitter have levelled up their approach in promoting not only entertaining content but have also evolved into the field of trade and commercial activities as well. Social Media and Over-the-top (OTT) platforms have effectively cushioned the ‘new normal’ by providing us with a variety of content to get through this Pandemic. These have also upheld the requirements of information transmission, while at the same time enabling us to enjoy content, express opinions, keep ourselves entertained and educated and even construct our own businesses. While there is plenty of evidence of the immense contribution of such platforms in our lives, we cannot overlook the misuse it has been subjected to. The lockdown has acquainted us with the stark reality of our over-dependence and reliance on these platforms.[1] Needless to point out, this over-reliance is treacherous and the rampant use abuses people and infringe privacy.[2]

In the face of theatre closures across the country, OTTs have acquired a huge chunk of the entertainment zone and its influence is only increasing, in terms of content, opportunities and revenue. However, the liability of these platforms has triggered due to the upsurge of widespread fake news, use of offensive content or language, pornography, indecent media, disregard to religious sentiments and events such as Farmers’ protests. Twitter was even directed to take down around 1500 accounts as they ‘incited’ violence through #farmergenocide.

OTT platforms and the rationale behind these Regulations

OTT platforms offer streaming services through audio and video content on their platforms via the Internet. Although earlier they used to offered existing content, they have now also started producing original content in the form of documentaries, feature films, web series etc. The most famous platforms are Amazon Prime Video, Netflix, Hotstar, Voot etc.

The Ministry of Information & Broadcasting, in its press release, stated that the increased incidents of misuse of social media by criminals or anti-national elements have brought upon new challenges for law-enforcement bodies. There is no underlying complaint mechanism for the users of OTT and Social Media Platforms, to register grievances and seek redressal within a set timeline. Hence, there is a lack of transparency and the absence of an efficient complaint redressal system has left no option but to tolerate the arbitrariness of these platforms.

Amidst growing concerns around lack of accountability and rights of users related to digital media and after elaborate consultation with the public and stakeholders, The MeITY under Sections 69A(2), 79(2)(c) and 87 of the Information Technology Act passed the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (Rules) for regulating the OTT services, social media platforms and digital media. These rules primarily focus on the digital intermediaries.

Under Section 2(1)(w), an Intermediary is a person who obtains, stores or transmits the data or provides services relating to that data. It includes telecom, network, web-hosting service providers, cyber cafes, search engines and online marketplaces. The Social Media Intermediary allows its users to use their platform. In the present case, we, as users, use Facebook as the intermediary to connect to our known. From a legal perspective, these intermediaries are guaranteed some protection. In a very famous case of 2008, an IIT student had published an MMS on ‘baazi.com’ Upon the revelation of it being an obscene video, ‘baazi.com’ had removed the video from its website. Although this website had a filter for such content, the listing nevertheless took place. The Police filed an FIR, whilst taking cognizance of this matter. However, after investigation charge sheets were filed against the student as well as the owner of ‘baazi.com’. The question arises whether it was fair to punish the owner, who was unaware of the nature of this content. The courts ruled in favour of the owner and opined that it was unjust to punish him. [3]

Therefore, the intermediaries are granted immunity which in effect means that there is no fault of these platforms if the user posts obscene content on them. The user bears the sole responsibility of posting such content. However, the new rules have partially cut down on this protection for the intermediaries.

The New OTT Rules and their main Provisions

The Government through the Official Gazette of India has issued the rules in three divisions:

1. Part 1 mentions requisite Definitions and Terms.

2. Part 2: The Ministry of Electronics and Information Technology will administer Due Diligence requirements to be fulfilled by Social and Significant social Media Intermediaries and Grievance redressal mechanism wherein the focus area will be on the social media platforms (Facebook, Twitter, Signal, WhatsApp, Instagram, Telegram).

The Rules have divided the entities that store or transfer data on behalf of others. In two categories:

1. Social media intermediary primarily enables the online interaction between its users and allows them to share, create and disseminate or seek information using the help of those services.
2. A significant social media intermediary is the intermediary having more than 50 lakh registered users in India.

2.1 Due Diligence to be performed by the social media intermediaries:

• The intermediary shall publish its rules, its privacy policy or the user agreement, on its website or mobile application. The rules must inform the website/application user regarding the information that cannot be published, hosted, and displayed. For instance, defamatory information or any content that is harmful to a child.
• The Intermediaries shall remind the rules/ privacy policies to the users at least once a year and warn them against non-compliance with the rules. The violation of rules will lead to the termination of the usage rights of the user.
• In the event when a competent authority passes orders to remove or disable any information that has been published, or hosted on the intermediaries’ website, the intermediary has to take down such content within 36 hours.
• The intermediaries are given the freedom to voluntarily remove/disable the information published, which is illegal or in contravention of the current laws. The information that is removed should be stored for 6 months for investigation purposes, or as per the requirement of the court.
• The intermediary has to keep a track of the registration information of the user for 6 months even after the user cancels or withdraws his registration.
• If the Courts seek information from these intermediaries, by sending a  written order the intermediary must provide the sought information within 72 hours. They shall also assist the authorized authorities for the purpose of such investigation.
• There shall be a robust Grievance Redressal Mechanism where victims can register complaints. The Grievance Officer must acknowledge the complaint within 24 hours and the set resolution period is  15 days.
• When the complaint is related to full/ partial nudity or sexual act, the Grievance Officer shall remove access to that content within 24 hours.

2.2 Due diligence to be performed by the significant social media intermediaries

• Within 3 months he must appoint a: Chief Compliance Officer to ensure the compliance with the Act and rules, Nodal Contact Person, to 24×7 coordinate with the law enforcement bodies and officer to ensure compliance to the orders and, a Resident Grievance Officer to register complaints of the users, acknowledge and resolve them within 15 days.
• He must Publish a monthly compliance report with the grievances received, the resort that was taken to solve them and the nature of such content.
• They shall enable tracing mechanisms for the identification of the originator of information subject to the discretion of the competent authority.
• Provide a clear picture to the users regarding the services of advertising, marketing, sponsoring, sales directed content that can have an impact on gain for the intermediary.
• employ technology-based mechanisms to identify obscene content or visuals and warrant a notice to any user trying to gain access. However, it must not undermine freedom of speech and the right to privacy in mind.
• Enable user verification on a voluntary basis.

However, there are some controversies regarding these rules:

1. The experts have analysed the possible burden of increased tax liabilities which will therefore discourage small innovative platforms to carry out their operations in India.
2. Since presently, there is no robust data protection law in India, the type of data that will be stored by these intermediaries remains unanswered and arbitrary.
3. Enabling tracing mechanisms of the originator of information may not be applicable in the case of WhatsApp and Signal, which are end-to-end encrypted. The government may require them to break the end-to-end encryption to oblige with the government rules which again hampers the privacy of the citizens. In case of non-compliance, they shall depart the Indian markets.
4. The government will curtail data or expressions that breach public order, which is ambiguous and largely vague. It may include curtailing the farmer protests or criticism of the government or any such activity that the government might deem to be against public order. Evidently, the government might misuse the freedom of speech and expression and instead of preserving constitutional values, may put sovereignty to test.

3. Part 3: Ministry of Information and Broadcasting will administer the code of ethics and procedure for digital media which will be administered by the Ministry of Information and Broadcasting with a focus on OTT platforms and Digital News. This rule is applicable to news publishers and creators of online curated content. There will be a three-tier grievance redressal system for these platforms.

3.1 LEVEL-I:

Level I will be Self-regulation by the publisher. The publisher will establish a grievance redressal mechanism and appoint a Grievance Officer for the same. The Officer will receive complaints relating to the Code of Ethics and establish the interaction of the victim, the IB ministry and the self-regulating body. He shall resolve the complaint within 15 days. Further, the online-curated content shall be classified in accordance with the categories prescribed under the schedule.

3.2 LEVEL-II:

In Level II, a single or more self-regulatory body will form an independent body by the publishers. It will be headed by the retired SC or HC  judge or any other expert from the relevant field of media. The constituted self-regulatory body shall also register with the Ministry within 30 days of such formation. The body shall:

• look into and ensure that the publishers diligently follow the code of ethics.
• Advice and guide the publishers regarding the compliance of the code of ethics.
• Hear appeals and address all the complaints which have been left unsolved, within 15 days.

The Self-regulatory body has been endowed with the authority to issue warnings and even reprimand the publishers on failure to comply. For online-curated content, they can order re-classification of rating, re-editing of synopsis, modification of content descriptor, age as well as access regulation. The oversight mechanism can be referred to in case none of the rules is abided by the publishers.

3.3 LEVEL-III:

The Ministry of Information and Broadcasting shall establish an Oversight mechanism. A Chairman will be appointed as an “authorised officer” of the committee, which will hear complaints and try appeals regarding any breach of the Code of ethics. It will have the following functions:

• Formulate charter for the self-regulatory bodies
• Establish a committee (Inter-Departmental) to hear grievances
• Issue orders for the publisher to adhere to the Code of Ethics
• Alter or remove content that incites offences
• Block published information in case of exigency

The publishers shall also present information and disclose details of grievance redressal to the Government.

3.3.1 Code of Ethics:

As per the code of ethics, the news platforms shall comply with the i)Norms of Journalistic Conduct of Press Council Act and ii)Programme Code of the Cable Television Act. The code of ethics also lists out principles to be followed by OTT platforms. The online-curated content must not:

• damage the values of sovereignty and integrity
• Threatens security of the nation
• Harms the relations of India with other nations
• Destroy public order or aggravate violence.

The publisher must respect the multi-racial and multi-religious diversity of the nation and exercise care and discretion when they in any way publish any such content which is directly based on any religion (in the form of culture, activities, beliefs etc.). They must exercise due care in classifying the content on the basis of nature and age. The children must be restricted in accessing inappropriate content and take into consideration the accessibility comfort in the case of disabled people.

3.3.2 Age-based Online-curated content:

• “U” (Universal) for children and all age categories
• “U/A 7+” for children aged 7 years and above. Children under 7 can view only with parental guidance.
• “U/A 13+” for children aged 13 years and above. Children under 13 can view only with parental guidance.
• “U/A 16+” for persons aged 16 years and above. Children under 16 can view only with parental guidance.
• “A” rating for the content restricted to only adults.

The publishers of online-curated content must:

• Classify as: Themes and messages, Violence, nudity, sex, language, drug and substance abuse, and horror. (Subject to modification by the Ministry of Information and Broadcasting)
• mention the classification rating at the start of every content
• provide a parental lock feature  

Major concerns

1. The procedure by which the news media and OTT platforms are attempting to regulate. The OTT has been subjected to covert regulation and news media platforms through proxy.[4]
2. Grossly unconstitutional as the oversight mechanism is backed by vague legislation and will attempt to perform functions of TV regulation like the of the Ministry of Information and Broadcasting. The rules must have been debated and scrutinised to promote improvement.
3. Drastic rules framed without any consultation with news media, OTT platform and civil society. The opposition as well as the public was given no room for participation and engagement in drafting these rules.
4. The grievance redressal forum may infringe the freedom of speech and expression of the artist and dual censorship structure can restrain the production of original and creative content.
5. The IT Act has no play in regulating digital news media. The rules made for the same may be ultra vires to Section 79 of the Act.
6. The discretionary power to censor content and using the public order as an excuse to prevent criticism. The rule of emergency blocking in those cases where the delay is not acceptable is also unreasonable and broad.
7. The government through these rules, destroy the very essence of the constitution and its values. Criticising and blocking content without any sturdy reasons tend to compromise the efficacy of laws. The third pillar of our nation, the Judiciary is the true judge of what can be construed as arbitrary and what is correct. The executive interferes with the role of the Judiciary and attempts to make rules on its own without testing the consequences.
8. The government is formed by Political parties. These political parties are biased and deviate from the rules to confirm their own authority. 
9. The government also introduced the first originator identification mechanism, which is an illegal and anti-public policy. The Applications like WhatsApp, Telegram and Signal will have to mandatorily disclose the identity of the originator under Rule 5(2) of the IT Rules which cannot be done unless they break end-to-end encryption. Such encryption is necessary for privacy and it is also safeguarded by Section 84A of the IT Act. Evidently, Rule 5(2) is in direct contravention with the parent act.
10. The implementation of AI to block the spread of pornographic content compromises privacy without any accountability.

Conclusion:

Certainly, every coin has two sides. Though the new rules have been necessary and welcoming, limitations and lacunas also characterise the same. Critics are of the opinion that the government has exercised unreasonable and arbitrary power and overlooked the values enshrined in the constitution. Perhaps it is now upto the judiciary to make sense of these rules and interpret them in a manner that will not adversely affect right of expression and arbitrary regulation of content. The government must also aim to clarify the ambiguity in several of the terms terms. We, as citizens, must also make sure that immoral or vulgar content is not endorsed and glorified. The additional step can be to report the content, upon which platform managers must check and filter the content posted on their platforms.

[1]  Vikram Bhargava  & Vasudha Luniya, How India Regulates Social Media And The OTT Platforms – Information Technology (Intermediary Guidelines And Digital Media Ethics Code) Rules, 2021 MONDAQ (Aug. 19, 2021, 4:18 PM), (https://www.mondaq.com/india/social-media/1069974/how-india-regulates-social-media-and-the-ott-platforms–information-technology-intermediary-guidelines-and-digital-media-ethics-code-rules-2021).

[2] Ibid.

[3] Avnish Bajaj v. State, (2005) 30 AIC 560 (Del).

[4] Social Media Rules Include Text Traceability, Grievance Redressal, THE QUINT https://www.thequint.com/cyber/social-media-ott-digital-news-regulation-rules-rs-prasad-prakash-javadekar#read-more.

YLCC would like to thank Harshima Vijaivergia for her valuable inputs in this article.