India and the OTT

Source: Financial Express

The detailed guidelines brought in by the Indian government to regulate and control digital content on both digital media and OTT (Over-the-top) platforms has been met with concern and criticism by citizens, activists and digital media houses. The new rules were unveiled on February 25, under the ambit of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021. The strict guidelines for social media intermediaries make it compulsory for platforms like WhatsApp to identify the “originator” of “unlawful messages”.

For quite some time now, there have been debates on regulating social media and OTT platforms amid concerns about the growing role that these platforms play in the workings of a democracy- Big Tech has been evolving into an increasingly unregulated creature which, at once, acts as a bastion of free speech and expression, and also as a breeding ground for extremist ideologies that openly preach violence. Especially in the aftermath of the pandemic, countries across the world have been waking up to the threats posed by social media to elected governments and their people.

The new rules include a strict oversight mechanism involving several ministries, NDTV reported. The committee will include representatives from ministries of Defence, External Affairs, Home, I&B, Law, IT, and Women and Child Development. The government will also designate an officer of the rank of Joint Secretary or above to act as “Authorized Officer” who will be in charge of blocking content directly. Social media giants, too, will be required to appoint India-based compliant officers who will be required to inform users if their content is taken down, and give them reasons for taking down their posts, and also hear their grievances.

Alongside these regulations, the code of ethics bans content affecting “the sovereignty and integrity of India” and that which threatens national security. Social media sites will have to remove or disable offensive or illegal content within 36 hours of being notified or of a court order. Essentially, under the new rules Big Tech companies like Facebook and Twitter will no longer have the “safe harbor” and are now more liable for the content that users share on their platforms with due diligence, failing which the “safe harbor” provisions will no longer protect them from legal prosecution.

The rules for OTT platforms also follow a similar “soft-touch self-regulatory architecture” which calls for digital news disseminating platforms as well as platforms like Netflix and Prime Video to self-categorize their content into one of the five broad age-based categories. “The publisher of online curated content shall prominently display the classification rating specific to each content or programme together with a content descriptor informing the user about the nature of the content, and advising on viewer description (if applicable) at the beginning of every programme, enabling the user to make an informed decision prior to watching the programme,” Information & Broadcasting minister Prakash Javadekar said.

A little over a week after the new guidelines came into force, the Supreme Court of India while hearing a case pertaining to the ‘Tandav’ web series row, said that the guidelines ‘lacked teeth’ to punish violators or those who screen offensive content. The apex court appeared to be pushing the government to enact even stricter laws. “We went through your Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules of 2021... these are merely guidelines. There is no provision for punishment or fine... What is the mechanism to control it [content]” Justice Ashok Bhushan, heading the Bench, asked Solicitor General Tushar Mehta.

Critics of the new guidelines fear that it will curb the creative freedom of the OTT platforms which had only just started gaining a solid ground in India, creating meaningful content that challenged the tried and tested formulae of the usual entertainment dished out by the likes of Bollywood and TV soaps. Even before the guidelines came into effect, at least 23 petitions were being heard by different courts across India on the issue of regulating content produced by online streaming platforms. The grievances range from wounded religious sentiments to moral outrage against depictions of sexuality but the common thread that unites them is a desire to control what other citizens may watch in the privacy of their homes. With the guidelines in place, it becomes all the more easier to control what people watch, resulting in an overreach into freedom of expression.

Internet Freedom Foundation, a digital rights non-profit, has been at the forefront of this fight to stop the encroachment on the digital rights of Indian citizens and has been tirelessly working to let the government know of the threats posed by the new rules. In a report published on their website, the organization warned that the new rules, “essentially allows the inter-departmental committee a ‘veto-power’ over any content that may be produced. The net effect will be a heavily censored content ecosystem, resulting from both increased self-censorship due to the threat of action being taken as well as the top-down dictates of either the Ministry of Information and Broadcasting or the inter-departmental committee. The Rules also provide the Ministry of Information and Broadcasting with the power to administer OTT platforms. Given that the Rules also suffer from an excessive delegation of powers, a significant level of arbitrariness will now pervade the regulatory landscape, to be exercised at the discretion of the Ministry.”

On 10 March, the Kerala High Court issued notice to the Central Government on a writ petition filed by LiveLaw challenging the constitutional validity of the new guidelines, and stated that they impose “arbitrary, vague, disproportionate and unreasonable" restrictions on digital news media and social media intermediaries.

-Sanjukta Bose

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