On February 25, the government published its new rules under the Information Technology Act, 2009 bringing guidelines for internet intermediaries and digital media organisations. According to the government the basic essence of the Rules is to introduce a “soft touch oversight mechanism”, as it insists that platforms develop their own mechanisms to monitor and take down content, while building robust grievance redressal systems.
The IT Rules, 2021 focus on, and impact, three separate sectors:
- All online Intermediaries and platforms, with a special emphasis on social media companies
- Online streaming services
- Digital news companies
For social media companies, the new rules require platforms to allow identification of the originator of messages, which threatens the integrity of end-to-end encryption-based communication and privacy of individual users. For Over-The-Top streaming platforms, the government has proposed that the industry set up a self-regulation body headed by a retired Supreme Court or High Court, and a grievance redressal system.
For digital media companies and OTT platforms, the government has mandated compliance with a Code of Ethics. “All media platforms must have same justice system. Whether digital, print, TV or OTT, some rules have to followed. Some processes have to be set and the people have demanded them. Every day, I am getting many complaints on this,” I&B Minister Prakash Javadekar said during a press conference on Thursday.
MediaNama will be updating this post as and when more comments are received.
The Mozilla Corporation said that the new rules undermine privacy and free expression in their current form.
“In their current form, these Rules will undeniably harm freedom of expression, privacy and security and could be subject to legal challenges. Provisions like traceability of encrypted content, harsh content take down timelines and automated content filtering are blunt and disproportionate to the intention behind these changes. Given the many new provisions, these rules should be withdrawn and be accompanied by wide ranging and participatory consultations with all relevant stakeholders prior to notification.” —Udbhav Tiwari, Public Policy Advisor, Mozilla Corporation
Social Media Platforms
A spokesperson for Twitter India said that the company hopes to engage with the government to ensure there is a balance between democratic principles and internet protections.
“We are studying the updated guidelines, and we look forward to continued engagement with the Government of India to strike a balance between transparency, freedom of expression, and privacy. Twitter supports a forward-looking approach to regulation that protects the Open Internet, universal access, and promotes competition and innovation. We believe that regulation is beneficial when it safeguards citizen’s fundamental rights and reinforces online freedoms.” —Statement from Twitter Spokesperson
A spokesperson for Facebook India said that the new regulations are addressing today’s toughest challenges on the internet, and therefore the company welcomes the changes.
“Facebook is committed to people’s ability to freely and safely express themselves on our platforms. The details of rules like these matter and we will carefully study the new rules that were just published. We acknowledge and appreciate the recognition from the Minister on the positive contributions of social media to the country. Facebook is an ally for India and the agenda of user safety and security is a critical one for our platforms. We will continue to work to ensure that our platforms play an enabling role in fuelling the exciting digital transformation of India.”— Statement from Facebook Spokesperson
Home-grown social media micro-blogging platform, Koo said that the new social media guidelines help clarify the responsibilities of intermediaries
“Only a small fraction of the social media users are found to be making posts which may be against the laws of the land. The social media guidelines help make addressing these kind of situations uniform across all social media platforms and ensures the safety of the majority social media users across India. Enabling and maintaining freedom of speech is core to social media platforms. We will continue to work in the best interest of our users at all times and ensure that they have a great experience. At the same time, we are committed to abide by the laws of the land. This policy will help protect the interest of citizens at large and keep nefarious elements at bay.”— Statement from Koo
OTT Streaming Platforms
In an interview with Film Companion, Monika Shergill, Vice President for Content, Netfix India said that the government and the media industry need to come together in the best interests of consumers and creators.
“I don’t think any of the storytellers who want to bring their stories onto Netflix has an intention to hurt anyone. And in terms of the situation right with the new guidelines coming, we’ve been very really busy programming this slate and the fact that we have shared that entire slate with you is a testament to the fact that we are very committed to telling great stories in India. Eventually, the government and industry are going to work together to do the best for the consumers and creators and I think that is the focus going forward.”—Monika Shergill, Vice President for Content, Netfix India
I don’t think any of the storytellers who want to bring their stories onto Netflix has an intention to hurt anyone. And in terms of the situation right with the new guidelines coming, we’ve been very really busy programming this slate and the fact that we have shared that entire slate with you is a testament to the fact that we are very committed to telling great stories in India. Eventually, the government and industry are going to work together to do the best for the consumers and creators and I think that is the focus going forward.
The Broadband India Forum (BIF), stated that the IAMAI led measure by online content providers towards adopting the Self-Regulation Code and Toolkit is a responsible and mature step. In its statement the BIF said that OTT services are applied across sectors like e-commerce, education and entertainment, and in the past pandemic-ridden year they have proved as important and effective services.”These applications are major drivers of growth of broadband and digital infrastructure today and have a profound impact on the economic development of the country…In today’s Digital era, enhanced competition and liberalization should be encouraged along with responsible self-regulation as it leads to greater innovation and eventual benefits for the customers,” it said.
“BIF has always advocated liberalisation and responsible self-regulation for the Industry, as it encourages greater competition and innovation in the sector, which eventually benefits the end consumers. In the absence of any evident market failure in this vertical, we feel that the adoption of a Self-Regulation code and toolkit by the industry is the right way forward. BIF extends its compliments to the IAMAI and its member OCC companies for this proactive gesture.”—TV Ramachandran, President, Broadband India Forum
Rajesh Mishra, chief executive officer, UFO Moviez says that it is important that all segments of the media industry have a level playing field.
“The cinema industry is the most regulated industry which can actually control whether a child or minor is watching content or an adult is watching the content. Yet for cinemas there is a India wide infrastructure to certify the 1500 odd films that are screened in a year. In comparison, for other media which are available to children freely, the entire gamut of content is throw open to them without any control. I am sure that if films are allowed the same level of creative freedom, cinemas will surely be benefited by this. In this regard the film industry should also be allowed self certification subject to the same over all guidelines that are available for Print, television and OTT platforms.”—Rajesh Mishra, chief executive officer, UFO Moviez
Digital News Publishers
In a statement issued on March 5, the Editors Guild of India said that the new rules fundamentally alter how publishers operate over the internet and can seriously undermine media freedom in the country. The guild has taken issue with the government’s lack of consultation with stakeholders prior to bringing these rules and has
“They empower the Union Government to block, delete or modify published news anywhere in the country without any judicial oversight and mandate all publishers to establish a grievance mechanism. Various provisions in these rules can place unreasonable restrictions on digital media, and consequently media at large…The government must take note of the fact that in the name of reining an unfettered social media it cannot overwhelm India’s Constitutional safeguards for free media that has been the cornerstone of our democracy”—Editors Guild of India
In a letter sent to the Ravi Shankar Prasad, the IT Minister and Prakash Javadekar, the I&B Minister, on Friday, DIGIPUB News India Foundation expressed several reservations against the new IT intermediary rules. For instance, DIGIPUB pointed out that while new the rules allow the government and its bureaucrats to control and block access to the publication of any current affairs without any adjudication by a court, the main IT Act does not define ‘digital media’ nor ‘news and current affairs’ or ‘newspaper’. The industry body has asked both ministries to repeal these rules or place them on hold until “meaningful consultations” can take place.
“We draw your attention to the well settled jurisprudence on news media. A publication relating to current affairs represents not only the author or publisher’s fundamental right to express under Article 19(1)(a) of the Constitution but also the citizen’s right to be informed and to have access to differing viewpoints. For the executive to have the absolute power to regulate the content of news portals or publications would be to strike not only at the constitution scheme but at democracy itself.”— Statement from DIGIPUB News India Foundation
Views and Opinions
Writing in the Indian Express, former Infosys founder and chairman of Aarin Capital, TV Mohandas Pai said that the government’s approach attempts to balance important democratic principles without imposing unreasonable boundaries on the innovation and expression. He pointed to the recent spat between the Government and Twitter, with regards to blocking orders against thousands of accounts that were issued in the wake of January 26 violence at the Red Fort, stating that tech giants demonstrated “comical arbitrariness” when they took it upon themselves to interpret the laws of the land.
“The need of the hour is for every country to have a body of clearly-defined policy that is consistent with the principles of their democracies. India has taken a leadership position and made these issues a matter of inclusive public debate through this announcement. The country’s guidelines will ensure that unlawful information has clear boundary conditions, liability is defined, the process for enforcement of orders is transparent, and that all social and digital media companies can rely on a consistent definition of the ethics code that protects all participants in the digital ecosystem.”— TV Mohandas Pai
Apar Gupta, Ashoka Fellow and executive director, Internet Freedom Foundation, on the other hand, wrote in the Indian Express that the new rules contain some features that will bring accountability to social media platforms at a time when they have tremendous power that is anti-democratic. However, while the new IT rules address some of these issues, it gives arbitrary power to the government and the executive to regulate digital news media and video streaming platforms, he said. With the new rules requiring platforms to provide ‘traceability’ of users it has major implications for an individual citizens’ right to privacy and free speech, Gupta said.
“When put in the larger context of an environment that is rife with cybersecurity threats, an inconsistent rule of law and the absence of any surveillance oversight, this inspires fear and self-censorship among users. While in the present language, there is greater specificity and some salutary language, ultimately, all of it means little. The core of the traceability requirement undermines the core value of private conversations.”— Apar Gupta
- Summary: Information Technology Rules 2021, and Intermediaries and social media platforms
- Summary: Intermediary Guidelines 2021 From An OTT Streaming Services Perspective
- Summary: Intermediary Guidelines 2021 From Digital News Perspective
*Update (March 4 10:40 am). Updated with statement from Monika Shergill, Vice President for Content, Netfix India
*Update (February 27 4:15 pm). Updated with statements from Broadcast India Forum and Mozilla.
*Update (February 26 10:25 pm). Updated with statements from UFO Moviez and DIGIPUB News India Foundation.
**Update (February 26 12:58 pm). Updated with statement from Twitter India’s spokesperson. Originally Published February 26, 2021 at 12:14 pm