The Indian government is yet to properly clear the air on the role of news aggregators, publishers of online news, and curated content despite recently issuing an FAQ on the Information Technology (Guidelines For Intermediaries And Digital Media Ethics Code) Rules, 2021. The FAQs mainly focus on social media intermediaries and fail to address many sticky points of the Rules.
The IT Ministry is expected to release another document on the Standard Operating Procedures for the Rules, Minister of State (MoS) for IT Rajeev Chandrashekhar said at a press conference on November 1.
There is an urgent need for the other half of the Rules to be explained and clarified as it covers critical entities like news publishers and streaming platforms. The FAQ document suggests readers seek clarification about the Rules related to news and current affairs content from the Ministry of Information and Broadcasting (MIB).
What are the issues that MIB needs to address?
Proof for news and current affairs publishers: The IT Rules direct intermediaries to publish a clear and concise statement informing publishers of news and current affairs content that they have to furnish details of their user accounts on intermediary platforms to the Ministry in order to obtain a verification mark visible to all users.
- What needs to be addressed: The Ministry of Information & Broadcasting has not explained whether a contractual representation that a publisher has furnished details is enough or is actual proof needed for the intermediary to provide a verification mark.
Interpretation of the word ‘operate’: Publishers operating within the territory of India will have to abide by the IT Rules but MIB needs to expand on the implications of the word ‘operate’.
- What needs to be addressed: MIB must issue guidelines for the interpretation of the phrase “operates in the territory of India” present in the Rules. It should specify if it means a publisher registered in India or an entity that disseminates or shares news and current affairs content in India from an office registered outside the country.
Systematic business activity: The Rules are applicable to publishers which engage in systematic business activity in India.
- What needs to be addressed: MIB needs to provide the meaning of the phrase “conducts systematic business activity” and if it excludes a non-profit entity or an entity operating in a noncommercial manner.
Defining physical presence: News publishers who have a physical presence in the country will be considered to be operational in India under the IT Rules, 2021.
- What needs to be addressed: It needs to be cleared up if physical presence has to be related to a publishing activity, or if it is defined by any presence which includes a subsidiary conducting any activity, even if unrelated to publishing of news and current Affairs).
Parameters of the self-regulatory body: The self-regulatory body for news publishers will be headed by a retired judge of the Supreme Court, a High Court, or an independent eminent person from the field of media, broadcasting, entertainment, child rights, human rights, among others. The total members will not exceed six as dictated by the Rules.
- What needs to be addressed: The question which needs to be answered is if the decisions on complaints will be made by the panel of six, or is there a provision for forming sub-committees. MIB should also specify the tenure for the members and the head.
Applicability of provisions from the IT Act, 2000: Some of the sections in the IT Rules allows the issuance of advisories by self-regulatory bodies to publishers for ensuring compliance to the Code of Ethics, the inter-ministerial committee can take action under section 69A of the IT Act, 2000, and blocking of information in case of emergencies within grounds referred to under relevant section of the IT Act.
- What needs to be addressed: The applicability of Section 69A(1) of the IT Act pertains to intermediaries alone so it needs to be revealed if publishers of news and current affairs content also fall under the purview of the Act.
Classification of content: The IT Rules permit self-regulatory bodies or government officers to direct a publisher to reclassify ratings of content, or edit synopsis of relevant content, or make appropriate modifications in the content descriptor, age classification and parental or access control upon finding merit in a complaint.
- What needs to be addressed: MIB should state if publishers can decide the classification of content and if they may adopt age-related classifications (PG 13, 18+ etc) or if traditional classification norms such as “U, U/A” are preferred. It should also clarify if the changes in the content will be limited to India or will also have to be changed in the global catalog.
Understanding emergency: The IT Rules allow officers to examine the content in case of an emergency and recommend it to be blocked if it is necessary or expedient by submitting the recommendation in writing to the MIB secretary.
- What needs to be addressed: The power to block information supplied by digital media in case of an emergency must be tempered by categorical conditions which constitute an emergency by the ministry as it is likely to be misused by agencies to pull down content they do not approve of as the scope of emergency can be broad without conditions.
Disclosure of Information: Publishers and self-regulatory bodies are required to disclose the following information publicly every month:
- grievances received
- the manner in which they are disposed of,
- the action taken in respect of the grievances,
- the reply sent to the complainant,
- any orders/directions received under the 2021 Rules, and action taken after such orders/direction.
- What needs to be addressed: MIB needs to clarify if this information can be shared in an aggregated manner, and published quarterly instead.
Access control & age control mechanisms by online platforms: The Code of Ethics lays down the availability of access control mechanisms such as parental locks by the publisher for content that is classified as U/A 13+ or higher. The platforms will also need to put in place an age verification mechanism.
- What needs to be addressed: It needs to be spelled out if the requirement for access control measures gets satisfied if such mechanisms are made available by the platform to be switched on by users. They should state it explicitly if the platform needs to switch on the measures by default. MIB must explain what qualifies as a reliable age verification mechanism and whether users sharing their date of birth is sufficient. It should also clarify if a platform can rely on the age restriction of its payment processor.
Launch of an online form: A news and current affairs publisher operating in the territory of India has to inform the ministry about the details of its entity by furnishing information along with such documents under the new rules.
- What needs to be addressed: If MIB is planning to launch an online form for publishers through which they can furnish information. The ministry should release the date of the form soon.
Accessibility of content by persons with disabilities: The IT Rules state that publishers of online curated content must take reasonable efforts to improve the accessibility of online curated content transmitted by it to persons with disabilities through the implementation of appropriate access services.
- What needs to be addressed: MIB should clarify if this is a mandatory requirement as the language in the Code of Ethics suggests that this is not a mandatory requirement.
Code of Ethics for foreign publishers and aggregators: The Code of Ethics is a set of guidelines that dictate how entities must conduct themselves in India as prescribed by the laws of the land.
- What needs to be addressed: MIB must explain how the Code will apply to foreign entities which do not have a physical presence in India and how the ministry expects to make them a part of an Indian industry body under Tier II. It should also state the government’s plan to take action against foreign entities under non-compliance.
Roles and duties of online news publishers, news aggregators, and OTT platforms
An entity as publisher of news and an intermediary: The FAQs recently released do say some entities may be functioning both like an intermediary as well as a publisher but further clarification with respect to the Rules relating to news and current affairs content will have to be sought from the Ministry of Information & Broadcasting (MIB).
- What needs to be addressed: Now that the ministry has clarified that an entity can be categorised as both, a ‘publisher of news and current affairs content’ and an intermediary, the MIB needs to explain if such entities will be subject to obligations under both Part II and Part III of the rules. At an event organised by MediaNama, Udbhav Tiwari of Mozilla contended that “the first thing that comes to mind is to carve aggregators out of the scope of digital news and the entire code of conduct, because it’s quite hard to imagine how they can both be intermediaries and follow the provisions applicable to aggregators at the same time.”
Definition of news and current affairs content: The IT Rules define news as content that is received newly or noteworthy about recent events of socio-political, economic or cultural nature that is disseminated over internet or computer networks. Moreover, they define: “…digital media shall be news and current affairs content where the context, substance, purpose, import and meaning of such information is in the nature of news and current affairs content”.
- What needs to be addressed: The current definition, as it stands, will include, for example, a documentary on the relevance of Ambedkar’s politics released around the time of Ambedkar Jayanti. It cannot be the intent of the regulation so the ministry must release guidance for the interpretation of this definition.
Understanding news aggregators: The Rules specify that an entity that plays a significant role in determining the news and current affairs content being made available to users via a computer resource for access is a news aggregator.
- What needs to be addressed: The MIB must clear up how to interpret the definition when it says “perform a significant role in making news content available”. MediaNama, in its submission, had requested the ministry to explain if using automated algorithms to aggregate/curate news content will make entities ‘news aggregators’.
Defining ‘online curated content’: The Union government provides a definition which suggests a “curated catalogue of audio-visual content” which is not news, and is transmitted by a publisher over internet or computer networks qualifies as online curated content. The definition applies to films, audio-visual programmes, documentaries, television programmes, serials, podcasts, among other things.
- What needs to be addressed: The definition is not clear if the Rules apply to audio-only content which includes music. The definition references podcasts but does not elaborate on what qualifies as podcasts.
Clarity on intermediaries: The IT Rules are a set of guidelines released under the framework of the IT Act which states that an “‘intermediary’ means any person who receives, stores or transmits that record or provides any service with respect to that record”. The definition covers:
- Telecom service providers,
- Network service providers,
- Internet service providers,
- Web-hosting service providers,
- Search engines,
- Online payment sites,
- Online-auction sites,
- Cyber cafes.
- What needs to be addressed: MediaNama believes that news aggregators, news and online curated content publishers are not part of the category of intermediary services included by the IT Act. The inclusion of these entities in the IT Rules, 2021, exceeds the scope of the parent legislation and the government must clarify otherwise.
Who is a publisher of news and current affairs content? A news publisher covers online newspapers, news portals, news aggregators, news agencies, which are functionally similar to publishers of news and current affairs content. It will not cover newspapers, replica e-papers of the newspaper and any individual or user who is not transmitting content in the course of systematic business, professional or commercial activity, according to the government.
- What needs to be addressed: MIB must state clearly if the definition covers the following:
- non-profit entities publishing comments or analyses on issues relating to news or current affairs;
- citizen journalists uploading content relating to news or current affairs;
- publication relating to news or current affairs by entities or individuals in a non-commercial capacity;
- publication relating to news or current affairs by entities or individuals in a non-professional capacity or in a capacity that is not classified as a systemic activity.
The ministry must also explain what the words “functionally similar” mean in the context of news and online curated content publishers.
What constitutes a significant role? The definitions in the IT Rules for news aggregators and publishers of online curated content suggest that the entities need to be performing a significant role in determining the content being made available to users.
- What needs to be addressed: There is less clarity on the scope of the term ‘significant role’ so the ministry should specify if the following amounts to a significant role:
- A platform enters into agreements with selected content partners to showcase their content on the platform but has no say in the content actually provided by the content provider
- The platform funds the content
- It monetises the content by insertion of ads and pays revenue share to the content provider
- Carries out manual or algorithmic curation of content
- The platform merely redirects to the content provider’s site
- Summary: IT Rules clarifications from the government and some comments from us
- What does the Indian government’s FAQs on IT Rules 2021 fail to answer?
- How the IT Rules FAQs add to the arbitrariness and confusion around the rules
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