On 25th February 2021, the Central Government established a set of rules that are to be followed by the Over- The -Top (OTT) Platforms while acting as an intermediary for streaming online content. By virtue of the powers vested under Section 87(2) of the Information Technology Act, 2000 , the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021, [hereinafter, called Ethics Code] replaced the 2011 rules, Information Technology (Intermediary Guidelines) Rules 2011. The government believes that intermediaries have evolved into becoming publishers themselves, and therefore require a regulatory framework to inculcate a sense of transparency and accountability. These rules are the result of consultations between the Ministry of Electronics and Information Technology (MEITY) and Ministry of Information and Broadcasting along with various comments, (around 170) that were received from individuals, civil society, industry association and organizations, pursuant to the draft Rules prepared by the Ministry of Electronics and Information Technology.
- Due Diligence Obligations of an intermediary :
1.2 Content of the aforementioned ,shall be in consonance with the guidelines mentioned under Section 3(1)(b).
1.3 Information regarding the compliance of the aforementioned list to be delivered to the users periodically (at least once every year). Non-compliance of these regulations shall result in termination of usage rights.
1.4 Shall remove any unlawful information within 36 hours upon receipt of actual knowledge in the form of a court order or authorized agency of appropriate jurisdiction.
1.5 Any information that has been required to withdraw due to a court order or the like, shall be stored by the intermediary for a period of 180 days for investigation purposes or longer, as required by the court. Such obligation shall be fulfilled without tampering the evidence.
1.6 Collection of user information for registration, shall be retained for a period of 180 days after cancellation or withdrawal of such registration.
1.7 Provision of information within its control or possession within 72 hours of receipt of court order.
- Grievance Redressal Mechanism for intermediaries:
2.1 Details of the Grievance Officer including his contact details shall be published on the website and mobile application. The details should also include the mechanism by which a user can make a complaint against the violation of the provisions.
2.2 The Grievance Officer is required to acknowledge the complaint within 24 hours of the receipt of the complaint and dispose it within 15 days from the date of its receipt.
2.3 Grievance Officer shall also acknowledge any order, notice or direction issues by the Government or any competent Court.
2.4 Intermediary to implement mechanism that allows the user to provide information with relation to the content that he/ she deems is obscene and improper.
- Grievance Redressal Mechanism For Publishers Of Online Curated Content:
OTT platforms have been brought under the definition of publishers of online curated content in the Guidelines. Rule(3) of the Guidelines provides for a three-tier structure to address the grievances made in relation to the publishers.
Summary of the three-step grievance Redressal mechanism
3.1 Level I – Self Regulating Mechanism :
3.1.1 Publisher shall appoint mechanism involving a grievance officer whose name and contact details shall be made available on the website or the mobile application of the publisher.
3.1.2 Grievance Officer is the contact point for receiving any grievance and shall respond within the specified time – acknowledge within 24 hours and furnish further information within 15 days.
3.2 Level II – Self Regulating Mechanism
3.2.1 Can consist of more than 1 self-regulating body, which shall be headed by a retired judge of the Supreme Court or High Court or an eminent person from the field of media and shall include other members not exceeding 6, from the field of media, child and human rights and other relevant fields.
3.2.2 This body shall register itself with the Ministry of Information and Broadcasting, within 30 days of its constitution and shall perform the functions provided under Chapter III Rule 12 of the Ethics Code.
3.2.3 If the publisher fails to comply with the guidance or advisory of the self-regulating body within the time specified, the body is required to refer the matter to the Oversight Mechanism within 15 days of the expiry of the specified date.
3.3 Level – III– Oversight Mechanism
3.3.1 Ministry and Self-Regulating Body shall develop an oversight mechanism and develop and Inter-Departmental Committee for hearing grievances and an officer shall be appointed known as the Authorised Officer who shall not hold a rank not below to the Joint Secretary to the Government of India.
3.3.2 Interdepartmental Committee shall consist of representatives from different Ministries of the government and experts from relevant fields.
4) Obligations With Regards To Disclosure Of Information
4.1 The Publisher of Online Curated Information has an obligation to disclose details regarding the entity to the Ministry of Information and Broadcasting by furnishing the relevant documents to ensure communication and coordination.
4.2 Such information should be furnished by the entity within 30 days of the publication of these rules, i.e., before 27.03.2020. If the entity comes into existence after the publication of these rules, then such documents should be provided to the Ministry within 30 days from the commencement of its Operations.
4.3 Detailed Compliance report pertaining to the grievances received and the action taken shall be published by the entity on a monthly basis.
4.4 The publisher should preserve records of the content transmitted for a minimum of 60 days and provide it to the self-regulating body or the Central Government when required.
5) Obligations With Regards To Content Classification And Display
The General Principles prescribed under the Code of Ethics lay out a set of rules to ensure that the content published do not affect or threaten the sovereignty, integrity and Security of the State. General Guidelines have been laid down for the Classification of films and other entertainment programs that include context, theme, tone and impact, target audience etc.
Publisher shall ensure the self-classification of content in the following manner, and this information shall be displayed to the users in such a way that they are aware of this information before viewing or accessing the content:
- Online content suitable for all ages including children shall be classified as “U”
- Online content for children aged 7 and above but can be viewed under parental guidance by children below 7 years shall be classified as “U/A 7+”
- Online content for persons aged 13 and above but can be viewed under parental guidance by children below 13 years shall be classified as “U/A 13+”
- Online content for persons aged 16 and above but can be viewed under parental guidance by persons below 16 years shall be classified as “U/A 16+”
- Online content restricted to adults shall be classified as “A”
Restriction of Access:
The Code of Ethics lays down various mechanisms that control access of content to restrict young children from accessing it without parental supervision:
- Control Mechanisms including parental locks shall be made available for content that has been classified as U/A 13+ or higher.
- Content that has been classified as “A” rated shall require reliable age verification mechanism for viewing such content.
The Press Release notified by the government gives a summary of the guidelines that are imperative for intermediaries, social media intermediaries and publishers of news and online curated content. The Supreme Court, in the hearing of the anticipatory bail plea of Ms. Aparna Purohit, Amazon Prime Video’s India Head, stated that the guidelines merely provide for rules and regulations and that stringent provisions need to be incorporated into these rules to hold the digital platforms accountable for their actions that violate norms.
The three-tier mechanism provided under the guidelines will set a dangerous precedent to rights of freedom of speech and expression and the right to hold opinions freely without the fear of being persecuted. The involvement of the Central Government poses a threat to the principles of democracy, since the ultimate result leads to the control of content.
Age verification mechanisms have the ability to violate the right to privacy articulated under Article 21 of the Indian Constitution. Sensitive information is collected as part of the process, and with no concrete data protection laws in place, this mechanism violates the right to privacy.
There exists a lacuna in law with the insertion of vague and ambiguous terms into the guidelines. Under the parent Act [IT Act, 2000], OTT falls under the definition of an intermediary, given under Section 2(w). Under the new regulations, OTT platforms fall under the umbrella of “publishers of online curated content.” On application of the doctrine of substantive ultra vires, the Parent Act overrides the rules and regulations that have been made, and the Parent Act prevails. Since there is a discrepancy, interpretation of the same is required by the Court to eliminate any confusion. This discrepancy has also caused a conflict between the provisions of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021. On consideration of an OTT Platform as an intermediary, information registered and recorded, (including content) should be stored for a period of 180 days. Classification of an OTT Platform as a publisher of curated content requires the entity to store content only for a period of 60 days. It is suggested, as a way forward that Supreme Court provide clarity in the validity of the Guidelines and uphold the values of democracy by protecting the fundamental rights of the citizens.
Author: Prashant Jain, Co-Founder & Partner; Abhishek Gupta, Associate.
Disclaimer: The content of this article is intended to provide a general guide to the subject matter and that the same shall not be treated as legal advice. For any queries, the author can be reached at firstname.lastname@example.org.