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IT Rules 2021: How online news and current affairs commentators will be impacted

Social media companies and other online intermediaries are now responsible to monitor ‘news and current affairs’ content on their platforms published by individual journalists, freelancers, satirists or any other commentator. As a result online commentators like Faye D’Souza, Akash Banerjee (DeshBhakt), Dhruv Rathee, Amit Varma (SeenandtheUnseen) and even standup comedians could now fall under the government’s new regulatory framework.

Last week, the government notified the Intermediary Liability and Digital Media Ethics Code Rules, 2021 which introduced a new a regulatory oversight mechanism under the ambit of the Ministry of Information and Broadcasting (MIB) for news and current affairs/curated content on the internet. Legal experts told MediaNama that the rules clearly spell out various responsibilities placed on social media platforms when it comes to any and all online ‘news and curated content’, regardless of whether it is published by individuals or established news organisations.

A bit of context: The new intermediary rules mandate that social media companies operating in India have to follow specific due-diligence norms and set up a grievance redressal mechanism, which will be administered by the Ministry of Electronics and Information Technology (MEITY). While for digital media publishers, the government has awarded powers to the MIB to enforce a self-regulatory mechanism and grievance redressal system. MediaNama has prepared summaries explaining the new IT rules for social media and digital media entities under the IT Act.

Why this matters: Under these rules, the government’s has expanded its powers under Section 69A to include social media companies and digital media publishers. News organisations using social media channels to broadcast, share or publish news and current affairs will be beholden to the platform operators since the government has made Twitter, Facebook and YouTube, for example, responsible for what is shared, transmitted or published.

Who will this impact: The mechanism created under the rules effectively allows the government to issue directions to news organisations, any news and current affairs website, forum , or commentators, standup comics, satirists, podcasters on YouTube and and other platforms for communication via the internet. They can justify it under the need to regulate ‘news and current affairs’.

Google and Facebook have not responded to queries sent last week. A spokesperson for Twitter reiterated the company’s stance stating that they are studying the updated guidelines and looks forward to continued engagement with the Government.

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Can the government target all content creators under the rules?

Akash Banerjee, a satirist who founded and heads Chatterbox told MediaNama that at its heart, these rules ensure that the government can reprimand content creators, regardless of the facts of the case, since social media companies would directly be held accountable to comply with modification or blocking orders.

“While I understand why news should be regulated, how can ‘commentary’ be regulated? We do not do breaking news, we only depend published information, it is unprecedented for any functioning democracy to have rules like these. In the last few years a lot of resources, manpower and money, were deployed whether to create troll armies, bolster mainstream media, control print media, control advertising money and many other things, have been done to ensure that troubling questions and trouble makers do not make a noise” — Akash Banerjee, satirist, founder and head of Chatterbox

At the end of the day, social media companies are here to make money, Banerjee said. “So if the number of complaints become very high, they may just suppress the channel,” he added.

The intent of these rules is not to curb the spread of fake news, but to curb the spread of conversations, to control the narrative and to ensure embarrassing information and data is not further propagated. When you say that online content can brought down on the grounds and pretext of ‘public order’, which is widely misused term, anything can qualify as detrimental to public order”— Akash Banerjee, satirist, founder and head of Chatterbox

How are social media platforms responsible to enforce digital media rules ?

As per the the rules, social media intermediaries have to publish a guideline for news and current affairs publishers to furnish information on the user accounts accessing the intermediaries’ service under Rule 6. And under Rule 18, both news and curated content publishers will need to furnish the details of their user accounts to their intermediaries. Thereafter, such reports will be filed with the government. They would need also to mark verified ‘news and content creators’ if they comply with the platforms terms of service and Rule 18 of the intermediary rules.

“Part III is expressly made applicable only to publishers of news and current affairs content and publishers of online curated content,” said Avimukt Dar, Partner, IndusLaw.

However,social media intermediaries have to exercise due diligence in relation to what is published as well as what is publishable. In fact, significant social media intermediaries are even required to develop automated tools to continuously trawl for prohibited content. In that sense, they too are entrusted with limited regulatory responsibility for Part III as first responders”— Avimukt Dar, Partner, IndusLaw

Social media and other intermediaries need to guide publishers of news and current affairs content, since there is a kind of accreditation mechanism in place now, said Dar of IndusLaw

“They will also become part of self regulatory bodies to effectively participate in the three-tier oversight mechanism contemplated by the Rules. The comprehensive due diligence and monitoring mechanism contemplated by the rules will reduce the free flowing speech on the internet and (hopefully) lead to less hate speech and fake news“—Avimukt Dar, Partner, IndusLaw

How can the government exercise its blocking powers?

Section 69A, as defined under the IT Act, allows the government to block or modify content in the interest of “sovereignty, integrity, defence of India and security of the State or preventing a cognisable offence”. Under the redressal system, the government can issue orders under Section 69A of the IT Act instructing social media companies and/or digital media entities to modify or block specific content. .

“The blocking process under Section 69A appears to be distinct from that under the rules on intermediaries and digital media notified recently,” said Shahana Chatterji, Partner, Shardul Amarchand Mangaldas.

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“Section 69A states that the blocking must be in the interest of the given 6 grounds and that the reasons for the blocking must be recorded in writing. This provision provides certain due process requirements for the exercise of the blocking power by the Government,”she added.  It does, not however provide any opportunity to the intermediary to appeal against a blocking order, and the use of the emergency blocking powers under the Blocking Rules also remain wide and discretionary”—Shahana Chatterji,Partner, Shardul Amarchand Mangaldas

She added that some certain platforms have integrated elements of being a social media platform and a publisher, there is the possibility that both parts of the rules will apply to an intermediary.

What are the implications on these rules for social media platforms ?

The Rules define online intermediaries, social media intermediaries and digital media publishers in separate buckets based on their activities and information, as opposed to organisation specific categorisation, said Supratim Chakraborty, Partner, Khaitan & Co. “This categorisation has created a lot of confusion among companies,” he said.

But I do not think that the intent of the government is to choke companies with compliance. In my mind, social media intermediaries and others will need to marry different parts of the rules as part of their grievance redressal mechanism, depending on the exact pocket they operate in“—Supratim Chakraborty, Partner, Khaitan & Co

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(Updated March 13, 2021 6:10 pm). Updated based on Editorial Direction. Originally Published on March 8, 2021 at 11:57 am.

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