Last week, the Indian government introduced new rules regarding the use of social media, and the regulation of streaming services, in an attempt to crack down on misinformation and have an oversight over social media platforms, their practices and what content over-the-top (OTT) platforms can publish, and for whom. These will require big tech platforms to set up stronger grievance redressal mechanisms, and appoint executives to coordinate with law enforcement in India.
For social media platforms like Twitter, Facebook, etc., the guidelines will mean that these companies lose the safety net previously provided (they previously had limited liability over content that users posted on their platforms), if the companies do not comply with due diligence norms. The rules also call for a three-tier regulation mechanism for over-the-top (OTT) platforms like Netflix, YouTube, Amazon Prime, etc. and require them to self-classify their content into five categories based on age suitability. Although the government had been working on these rules since 2018, the recent de-platforming of former US President Trump and the recent face-off between the Centre and Twitter over removal of certain accounts have ensured urgency in implementing rules to regulate social media and OTT firms.
The Implications
The OTT platforms have long faced criticism of being an unregulated medium compared to the other audio-visual medium, television, which faces heavy regulation both on the content and carriage side. The government has suggested two key points for OTT platforms. One is the self-classification of content and the other is a three-tier grievance redressal mechanism. The OTT platforms, which are also called the publishers of online curated content in the rules, would self-classify the content into five age-based categories - U (Universal), U/A 7+, U/A 13+, U/A 16+, and A (Adult). Platforms would be required to implement parental locks for content classified as U/A 13+ or higher, and reliable age verification mechanisms for content classified as “A”.
The ministry has also established a three-level grievance redressal mechanism under the rules with different levels of self-regulation. The first tier is self-regulation by the publishers in which the publisher will have to appoint a Grievance Redressal Officer based in India who shall be responsible for the redressal of grievances received by it. The officer shall take a decision on every grievance it receives within 15 days.
The second tier is self-regulation by the self-regulating bodies of the publishers. Such a body will have to register with the MIB. This body will oversee the adherence by the publisher to the Code of Ethics and address grievances that have not been resolved by the publisher within 15 days. The third tier will see the formulation of an oversight mechanism by the MIB. The government also said that it has studied the models in other countries including Singapore, Australia, EU, and the UK, and has gathered that most of them either have an institutional mechanism to regulate digital content or are in the process of setting up one.
The regulation will help in streamlining the platforms and will largely enable viewers to make informed choices about what content they would like to consume. Most industry leaders are of the view that these regulations are necessary to bring the change and uniform set of rules across the board for all OTT platforms. It will also protect these platforms from frivolous PILs in the future.
Kurate Digital Consulting senior partner Uday Sodhi provides some perspective on the new regulations. “It doesn’t talk about any form of censorship. It only talks about the classification of content in the right way and gives clear direction on how to classify content. That makes life for the OTT platform much easy. It also talks about the redressal mechanism. So many shows are launched every year out of which one or two shows get into trouble. What the guidelines will do is that if somebody feels upset about a show you don’t need to pull it off. The industry should also follow these guidelines in letter and spirit,” says Sodhi.
Thin line between user privacy and social media accountability
The guidelines issued for intermediary platforms under the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021 seek to make services like Twitter, Facebook, and WhatsApp accountable for the content that is hosted on their platforms. The guidelines also provide for quick redressal of consumer complaints besides compelling platforms to follow due diligence. In order to tackle fake news, provisions like the first originator of the message have also been prescribed. Voluntary disclosure of users has also been provided for in the guidelines.
While notifying the rules, the government also observed that social media intermediaries are no longer limited to playing the role of pure intermediary and often become publishers. Social media platforms have amassed a huge user base in India thanks to the proliferation of smartphones and availability of cheap data. WhatsApp is the biggest platform in India with 53 crore users followed by YouTube with 44.8 crore users. Facebook has 41 crore users while Instagram and Twitter have 21 crore and 1.75 crore users respectively.
One of the most significant changes proposed by the new rules that have been framed under the Information Technology Act, 2000 is that the social media intermediaries will have to follow due diligence prescribed by the IT Rules 2021. If the due diligence is not followed, the ‘safe harbour’ provisions under section 79 of the IT Act will not apply to the social media intermediary. ‘Safe harbour’ provision provides legal protection to intermediaries who host user-generated content and exempts them from liability for the actions of users on their platform if they adhere to guidelines prescribed by the government.
“The social media platform will be asked to require to reveal the first originator of the mischievous tweet or message as the case may be and this should only be in the connection to integrity and sovereignty of India,” IT minister Ravi Shankar Prasad said during a press conference last week.
However there are concerns that the issue of first originator has the potential to impact privacy rights. “The new Information Technology Rules, 2021, seek to regulate social media intermediaries like WhatsApp and Signal. By forcing the identity of the originator to be disclosed, will burden end to end encryption facility that is provided by these platforms. This will impact privacy, speech, express and conscience rights under the Constitution,” senior advocate Menaka Guruswamy told PTI.
The newly introduced regulations however have been welcomed largely across digital media companies and agencies, who believe it will be useful in controlling cybercrime, tackling fake news, hate speech, sexual harassment and explicit content. It will also help bring some sanity to social media, where content continues to remain largely unregulated say industry leaders.
THE RESPONSE FROM SOCIAL MEDIA COMPANIES
Facebook India put out a statement in response to the new regulations, emphasising that it welcomes the regulations proposed by the government. “We have always been clear as a company that we welcome regulations that set guidelines for addressing today’s toughest challenges on the Internet. Facebook is committed to people’s ability to freely and safely express themselves on our platforms. The details of rules like these matter and we will carefully study the new rules that were just published. We acknowledge and appreciate the recognition from the Minister on the positive contributions of social media to the country. Facebook is an ally for India and the agenda of user safety and security is a critical one for our platforms. We will continue to work to ensure that our platforms play an enabling role in fuelling the exciting digital transformation of India,” Facebook India said in a statement.
A day after the Centre released the new rules for social media platforms, Twitter CEO Jack Dorsey said the micro-blogging platform is lacking in transparency and it has been evident in the last few years. “We agree many people don’t trust us. Never has this been more pronounced than the last few years… And we aren’t alone: every institution is experiencing a significant trust deficit,” he said to analysts, as reported by PTI. Dorsey last week said that Twitter intends to make its content moderation practices more transparent, give people more control to moderate their interactions, enable a marketplace approach to relevance algorithms, and fund an open-source social media standard. Focus on metrics like transparency, accountability, reliability and choice will have a huge impact, he added.
Homegrown microblogging platform Koo said that the social media guidelines set forth under the Indian laws help clarify the responsibilities of intermediaries. “Only a small fraction of the social media users are found to be making posts that may be against the laws of the land. The social media guidelines help make addressing these kinds of situations uniform across all social media platforms and ensure the safety of the majority of social media users across India,” the platform said in a statement.
