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Summary: Information Technology Rules 2021 and Digital News publishing

Digital news publishers will now have to notify the government of their operations, set up self-regulatory organisations and apply a complaints redressal mechanism, as well as follow codes which have only been applicable to print and TV news so far. 

The Indian government’s new Intermediary Liability and Digital Media Ethics Code Rules, 2021, notified on Thursday will require digital news publishers to form a three-tier regulatory structure and form self-regulatory organisations. All online news portals will have to submit their details to the Ministry of Information & Broadcasting within a month from now. “We are not mandating registration [through the portal], [instead we are] seeking information”, Prakash Javadekar, I&B Minister, said during a press conference on Thursday. 

Digital media platforms do not have the permission to spread fake news and rumours; media freedom is absolute but with reasonable restrictions, Javadekar stated.

Regulations for digital news over the past years have not involved any consultation process, starting with the 26% cap on FDI in digital media. On a question regarding whether the government will consult digital news platforms, Javadekar said, “We have no idea how many digital news publishers there are. Who do we even consult with? When we get information [after the portal is set up], our doors are open. We welcome you all [to talk to us].” 

The regulations, along with the existing 26% cap in FDI in digital media, will increase regulatory compliances for the online news industry, which unlike legacy print publications do not have an established business model. The changes for digital news are part of a larger change under the IT Act around all online content, which also bring about sea changes for how internet intermediaries and video streaming services such as Netflix and Amazon Prime Video will be governed.

“Publishers of news on digital media would be required to observe Norms of Journalistic Conduct of the Press Council of India and the Programme Code under the Cable Television Networks Regulation Act thereby providing a level playing field between the offline (Print, TV) and digital media,” the government said in its press release announcing the Rules.

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A draft of the Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules 2021 was released by Internet Freedom Foundation on Thursday. We have summarised the key points of the gazetted rules, along with how they differ from the leaked draft, below.  

Who the Rules apply to

The rules will apply to any person or entity that is a publisher of news and current affairs content with physical presence in India, and will be administered by the I&B Ministry. A ‘publisher of news and current affairs’ includes an online paper, news portal, news aggregator, and news agency, and any other entity that is “functionally similar” to publishers of news and current affairs; it will exclude e-papers of newspapers.

A news aggregator is an entity make aggregated and curated news and current affairs content available while “performing a significant role in determining” what news and current affairs content is made available.

Under the leaked draft of the rules, the provisions also applied to (apart from news publishers) intermediaries primarily enabling sharing of news and current affairs, or even those providing a “dedicated interface” or “part of its computer resource or services” for sharing of news. 

Now the rules specify the procedures for when action may need to be taken upon intermediaries to block certain content. For compliance with blocking requirements as well as modification/deletion orders under Rules 15 and 16, the rules will also apply to intermediaries. 

The rules will not be in derogation  of any other applicable laws and remedies available under the IT Blocking Rules 2009. The leaked version said that these provisions are the safeguards and procedures referred to in Section 69A of the IT Act. 

Grievance redressal

Any person can complain to the publisher in relation to the Code of Ethics. Online new publications have to comply with the: 

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  1. Norms of Journalistic Conduct of the Press Council of India under the Press Council Act,  1978, and 
  2. Programme Code under section 5 of the Cable Television Networks Regulation) Act, 1995

In addition, legally prohibited content shall not be published or transmitted. The rules prescribe a three-tier structure for regulation for digital news publishers: 

  1. Level I – at the publisher level: Anyone can approach the publisher with a complaint, for which the publisher has to appoint a redressal mechanism and appoint a grievance officer residing in India. The officer will have to make a decision within 15 days. Each publisher must be a member of a self-regulatory organisation.
    • In the leaked version, the Ministry was to set up a central repository which would receive complaints. Complaints received independently by the publishers had to be registered with the government portal. 
  2. Level II – at the self-regulatory organisation level: Digital news companies will have to form a self-regulatory organisation, though they can be more than one, and which will register with the government. The body will be headed by a retired judge of the Supreme Court, high court, or an eminent person from the media, broadcasting, entertainment, child rights, human rights or such other relevant field. It can have another six members from these fields. The SRO can issue a warning, censure, reprimand a company, require them to issue an apology or warning card. In matters where it feels that action is required to prevent incitement to commission of cognisable offence relating to public order or for reasons under Section 69A, the SRO can refer the matter to the Ministry. 
    • In the leaked draft, the chairpersonship was restricted to a SC or HC judge, who would be appointed by a government panel. The six other members were to be experts from the “field of media, broadcasting, technology and entertainment”. 
  3. Level III – government oversight by I&B Ministry: The Ministry will publish a charter of SROs (including their codes of practices) and and create an interdepartmental committee consisting of representatives from MEITY, I&B Ministry, ministries of Defence, External Affairs, Law, CERT-in, among others; this committee will be headed by the Authorised Officer of the I&B Ministry. It will also issue guidelines, advisories, and orders and directions for adherence to the Code. This committee will meet periodically and hear complaints coming from Level I and II appeals and those referred by the I&B Ministry (the leaked draft permitted suo motu picking up complaints as well). The Committee can make recommendations to the Ministry around: 
    1. warning, censuring, reprimanding a publisher, requiring a publisher to issue an apology, warning card, or disclaimer; 
    2. deleting or modifying content to prevent “incitement to the commission of a cognisable offence relating to public order”; or 
    3. recommend the need for action under Section 69A.  

For the latter two, an Authorised Officer (who will be an I&B Ministry officer appointed by the Ministry), will place the matter before the I&B Secretary. The Officer can direct a publisher, any government agency, intermediary, to delete, modify, or block content. In the case of an “emergency”, the I&B Secretary can issue such an order in the interim. 

Lastly, the government lays down a Review Committee, which will review and record whether the blocking orders are in accordance with Section 69(A). If it finds that this isn’t the case, it can set aside a blocking order. 

All news and current affairs publishers to notify government, submit their details 

Publishers of news and current affairs content has to inform the I&B Ministry of its details “by furnishing information along with such documents as may be specified, for the purpose of enabling communication and coordination”. Existing publishers need to submit this information within a month of the rules being notified (this has been reduced from 60 days in the leaked draft). 

Publishers have to issue monthly compliance reports mentioning details of the grievances received and the action taken. The I&B Ministry can ask publishers for additional information if necessary for the implementation of the rules. 

The notified rules cast a wider net than the leaked draft, which placed these requirements only for significant social media intermediaries i.e. new publishers that have over 500,000 subscribers or 5 million followers on any significant social media intermediary. 

Regulation of Digital News: A timeline

In August 2019, the Indian government restricted foreign investment in digital media companies to 26%, which is the limit of foreign ownership print media companies are subject to. There was no restriction on foreign ownership prior to this. This was seen as a way to control digital media. 

Shortly after, in November, the I&B Ministry hosted a consultation for a law that will regulate print and digital media, and seeks to replace the Press and Registration of Books (PRB) Act, 1867. The Registration of Press and Periodicals (RPP) Bill, 2019, however, did not define news, or lay down the target entities, but proposed mandatory registration of publishers of news on digital media.

In October 2020, the government “clarified” that the cap would apply to digital media entities streaming or uploading news and current affairs on websites, apps; news agency that transmits news to digital media entities or news aggregators; and to news aggregators that curated news content from various sources at an app or website. The clarification showed the August 2019 policy change in its clearest light: a restriction on foreign funding for Indian online news outlets.

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On November 11, 2020, the Ministry of Information and Broadcasting was allotted authority over streaming platforms and online news, a change it had signalled in July. Within a week, the Ministry announced that digital news outlets have until October 15, 2021 to reduce their foreign investments to 26%. Additionally, these companies were given a month’s time to share details of their foreign investors with the Ministry. 

Note: This article has been updated at 13:00 IST on February 26 based on the Information Technology Rules (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, notified in the gazette on the evening of February 25. Originally published on at 17:35 IST on February 25. 

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