This article is written by Kirti Kapoor and Ashok Pandey, students of ILS Law College.

Introduction

On 25th February 2021, The Ministry of Electronics and Information Technology (hereinafter “MEITY”) and the Ministry of Information and Broadcasting (hereinafter “MIB”) notified the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (See here). 

With regard to the said Rules, the Government had duly issued an official statement stating the apparent objective of the publication as follows:

“Amidst growing concerns around lack of transparency, accountability and rights of users related to digital media and after elaborate consultation with the public and stakeholders, the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021 has been framed in exercise of powers under section 87 (2) of the Information Technology Act, 2000 and in supersession of the earlier Information Technology (Intermediary Guidelines) Rules 2011) (See here). 

After a more practical consideration of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (the “Intermediary Rules”) it is prima facie discernable that they intrinsically reshape the manner in which the internet will be experienced in India. Among many other glitches, the most glaring issue is that the said Rules tend to exceed the power of delegated legislation cast by the Parent Act (Information Technology Act, 2000), by including digital news platforms under the authority of the Ministry of Information and Broadcasting. 

Surprise inclusion of digital news platforms

While it is also the first instance when OTT platforms are being regulated under the intermediary guidelines, it is the authors’ opinion that their inclusion within the definition of intermediary seems justifiable because they hold third-party content and provide a platform to make it available to subscribers on demand. However, the inclusion of digital news platforms under the definition of “intermediaries” raised many eyebrows. It is also pertinent to note that even though the guidelines have been notified, the government is still not aware of the number or identity of the online news platforms which shall be regulated under these guidelines. 

Owing to the controversial inclusion of digital news platforms, two separate petitions have been filed by Live Law and The Wire, in the Kerala High Court and the Delhi High Court respectively. In their petitions, the common contentions raised include a challenge to the validity of Part III of the guidelines which extend to digital news platforms and the censorship of the content uploaded by these platforms.

They also challenge the three-level regulatory process established under the guidelines with the “Oversight Committee”, consisting of officials from various ministries in the Central government, being the apex appellate authority. In short, the contentions against the inclusion of digital media platforms can be boiled down to the following two issues:

• Whether the inclusion of digital media platforms within the definition of “intermediary” under the Information Technology Act, 2000 is justifiable? 
• Whether the three-level regulatory mechanism set up under the Rules is ultra vires the Parent Act?

Digital media platforms not intermediaries

On a thorough analysis of the scheme of the IT Rules read with the definition of “intermediaries” under S.2 (w) of the IT Act, 2000, it becomes self-explanatory that both the terms “Publishers” and “Intermediaries” cannot be used interchangeably and are unique. It is also important to consider that the word “Publisher” has nowhere been mentioned in the parent legislation. (See here)

The authority to notify these guidelines are a derivative of S.87 (2) (z) and (zg) of the Parent Act (See here) and the same provides for surveillance and action against intermediaries. S. 87(2)(zg) directs further to S. 79(2), which in turn, gives exemption from liability to “Intermediaries”. None of the exemptions under S. 79 (See here) can by any stretch of the imagination, be made applicable to digital news media platforms. Therefore the atrocious inclusion of digital news media platforms under these guidelines is not justified.

S. 87(2)(zg) also has consequences when read together with S. 69-A of the Act. (See here)  This particular Section also focuses solely on the Intermediaries and Government Agencies neither of which can envisage digital news media platforms as a genus. As held in the landmark Supreme Court judgement, Shreya Singhal v. Union of India, S.69A has limited and specific emergent powers and must be resorted to rarely, the provision must be construed strictly. (See here)

DIGIPUB, an association representing the largest collection of digital news publishers in the country, rightly pointed out that “a publication relating to current affairs” not only represents the author’s or publisher’s right to freedom of expression under Article 19 of the Constitution but also the right of the citizen to be informed and to access different viewpoints. If the same is subjected to the power of taking down content under S. 69A, it will add a redundant and needless regulation as they are already governed by the reasonable restrictions under Art.19 (2) of the Constitution. (See here)

The IT Rules, 2021 envisage a scheme, which prescribes two separate classes of regulations, the first, relating exclusively to the due diligence norms to be adhered to by the “Intermediaries” (Part II); the second, laying down the code of ethics to be observed by the “Publishers” (Part III). (See here)

It is pertinent to observe that “intermediary” is a term recognized by the parent Act whereas, “Publishers” and “Publishers of news and current affairs content” are only defined under R.2 (s) and R.2 (t) respectively, in the new IT Rules, 2021 as follows:

• R.2 (s) ‘publisher’ means a publisher of news and current affairs content or online curated content. 
• R.2 (t) ‘publisher of news and current affairs content’, means, an online paper, news portal, news aggregator, news agency and such other publishers of news and current affairs content by whatever name called, but does not include newspapers, replica e-paper of the newspaper and any user generated content which is not transmitted in the course of systematic business activity. 

Along with the above mentioned, terms “Content” and “News and current affairs content” are also specifically defined under R.2 (g) and R.2 (m) respectively as follows:

• R.2 (g) ‘Content’ means electronic record defined in clause (t) of section 2 of the Act. 
• R.2 (m) “News and current affairs content” includes newly received or noteworthy information, including analysis, especially about recent events primarily of socio-political, economic or cultural nature, available over the internet or computer networks; Explanation: For the purposes of these rules, any digital media shall be news and current affairs content where the context, substance, purpose, import and meaning of such media is in the nature of news and current affairs content.

Moreover, the parent Act attempts to superintend electronic data/records. The primary object and purpose of the parent Act is to establish legal recognition of such electronic data/record, acknowledge the means of electronic communication, institute and substantiate conditions in which electronic data/record could be deemed as admissible evidence, and to penalize crimes committed through utilization of computer resources. Very clearly, regulation of content over and above is not the desired purpose, saving intermediaries, who are immunized severally. The parent Act hence, neither identifies digital news media platforms as a distinct class of entities nor does it enshrine it under any of the terms elaborated upon by it. 

Insofar as the News aggregators are concerned, they are defined under R. 2 (o) as follows:

“an entity who, performing a significant role in determining the news and current affairs content being made available, makes available to users a computer resource that enable such users to access the news and current affairs content which is aggregated, curated and presented by such entity”.

The above definition makes it clear that news aggregators aggregate and curate their own content unlike intermediaries which essentially act as a link between the content providers and the consumers accessing the said content. Therefore, they cannot be classified as an intermediary and be subjected to these rules.

Regulatory mechanism under the rules

The regulatory mechanism established for digital news media platforms as well as OTT platforms under the Rules is as follows:

Level 1: Self-regulation – by the Publishers themselves.

Level 2: Self-regulation committee – headed by a retired judge of the SC or HC or an independent eminent person from the field of media, broadcasting, entertainment, child rights, human rights or such other relevant fields and 6 members being experts from the field of media, broadcasting, entertainment, child rights, human rights or such other relevant fields.

Level 3: Oversight committee – consisting of an interdepartmental committee which further consists of representatives from Ministry of Information and Broadcasting, Ministry of Women and Child Development, Ministry of Law and Justice, Ministry of Home Affairs, Ministry of Electronics and Information Technology, Ministry of External Affairs, Ministry of Defense, and such other ministries and organizations including domain experts that it may decide to include in the committee.

The argument given by the government to establish such a regulatory mechanism for OTT platforms is that there should be no discrimination between the regulations on theatrical releases and online OTT platform releases. However, it ought to be noted that the regulatory body for content regulation of theatrical films i.e. the Central Board of Film Certification is, in fact, a statutory body under the Cinematography Act, 1952. On the other hand, the regulatory mechanism for OTT platforms and digital news platforms is formed under the delegated powers given to the Central Government under Section 87 of the IT Act, 2000. Whether the scope of Section 87 is wide enough to include the creation of such a regulatory mechanism for OTT platforms is beyond the scope of the contentions being discussed. What shall be focused on is the arbitrary inclusion of digital news platforms in this framework.

Let us consider the example of regulation by electronic media houses. The News Broadcasting Standards Authority (NBSA) is an independent body set up by the News Broadcasters Association (NBA) (which is also formed privately). NBSA considers and adjudicates upon complaints received on news broadcasts. It consists of 9 members:

• 1 Chairman who is an eminent jurist.
• 4 members having special knowledge in the field of and/or practical experience in the field of law, education, medicine, science, literature, public administration, consumer affairs, environment, human psychology and/or culture.
• Four eminent editors employed with a broadcaster.

It follows a code of ethics laid down by the NBA and its task is to ensure that the news channels are impartial and neutral while reporting, take extra care while reporting crimes against women and children, take care that they don’t glorify crime or violence, abhor sex or nudity, respect privacy etc.

Some notable examples of action taken by NBSA include a penalty of Rs. 1 lakh imposed on Aaj Tak for violation of code of ethics during the Sushant Singh Rajput death controversy coverage. It further asked other guilty channels such as News24, India TV and ZEE News to scroll apologies for ethical violations in the same case (see here). It may be worthwhile to note that this regulation mechanism has no involvement or representation from the government whatsoever.

On the other hand, the redressal agency against newspapers is the Press Council of India (PCI), which is a statutory body established under the Press Council of India Act, 1978. The PCI consists of a chairman who, by convention is a retired Supreme Court judge. There are 28 other members, 20 of whom are elected from the press organizations, notified and recognized by the Council as all India bodies of categories such as editors, working journalists, owners and managers of newspapers. 5 members are nominated from both houses of the parliament and the remaining 3 represent the cultural, literary and legal fields as nominees from the Sahitya Academy, University Grants Commission and the Bar Council of India. (See here)

The PCI has power to receive complaints of violation of journalistic ethics or professional misconduct by an editor or journalist. It may issue warnings, admonish the newspaper or the journalist or editor. It should be noted that while the PCI has powers to enforce the guidelines, it cannot punish for its violation. Furthermore, it also does not have the power to review the functioning of electronic media like radio (which have to follow the programme and advertisement code issued by All India Radio) (See here), television (regulated under the programme and advertisement code guidelines issued under the Cable Television Networks (Regulation) Act, 1995) and internet media. Moreover, the Information Technology Act, 2000, unlike the PCI Act, 1978 or the Cable Television Networks (Regulation) Act, 1995, does not prescribe any code of conduct for the government to be empowered to regulate them under intermediary guidelines. (See here)

The Internet Freedom Foundation, on the other hand, is questioning the notification issued by the cabinet secretary wherein the power to regulate online content has been transferred to the ministry of information and broadcasting (MIB) as against MEITY. (See here)

Upon a perusal of the regulatory mechanisms of the electronic news media, newspapers and the newly established regulatory framework for online news platforms, it is apparent that online news platforms are proposed to have maximum government interference. This is not only problematic from an ethical standpoint but also a violation of Article 14 for being manifestly arbitrary.   

Conclusion

The concerns surrounding the paucity of transparency, accountability and rights of the users associated with digital media stand justified. The authors even support the urgency accounted to the enhancement of existing legislations along with the introduction of new ones in this regard. The present disquietude is with regard to the fact that the measures taken in perusal of a warranted need of the hour are arbitrary and undemocratic. The crafty and cautious approach adopted while publishing the rules and the same providing for overbroad authority to the government, in addition to being ultra vires of the parent act suggest an element of ignoble conduct on behalf of the government.

In contradiction to the currently prevalent regulations, the way forward must involve effectuation of Parliamentary legislations and statutory rules which model proper and unbiased supervisory bodies and redressal mechanisms having two levels. First, being the self-regulation by the publishers and the other being a regulatory committee consisting of equal number of representatives from the government and experts from various relevant fields in conformity with the composition of NBSA and PCI. This equal representation will also ensure a system of checks and balances against the arbitrary censorship of content in the name of reasonable restrictions. 

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