Regulation of OTT and Digital Content

Context:

Recently, the central government has notified the Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules 2021 (Rules) which introduce guidelines for digital content on both digital media and Over the Top (OTT) platforms.

Probable Question:

1. There is a need for regulation to keep out obnoxious online content with the need to preserve our constitutional values and freedom of expression. Discuss in context of recently notified the Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules 2021 (Rules).

About the Information Technology Rules, 2021:

● These rules have been framed in the exercise of powers under section 87 (2) of the Information Technology Act, 2000.

● The rules seek to regulate digital news media and video streaming platforms, borrow heavily from the existing regulations and the structure governing the television media, including the content codes and the grievance redressal structure.

Regulation of digital news platforms:

● According to the new rules, these existing codes will thus govern all online news content.

● Any complaint regarding any violation with regard to the content published by the platforms will first be attempted to be addressed at the company level itself.

● The rules mandate every digital news company to set up a grievance redressal mechanism and appoint a ‘Grievance Officer’ based in India.

● The organisations will have to ensure that this officer takes a decision on every grievance received by it within 15 days, and communicate the same to the complainant within the specified time.

● If the complainant is not satisfied with the response of the company, the complaint can be escalated to an appellate tier, which would be a self-regulatory body.

● The rules also empower the I&B Secretary to decide to block public access to a specific content without giving the platform an opportunity of hearing, in case of an emergency.

Regulation of OTT platforms:

● As per rules, OTT platforms will not stream content, which is against the sovereignty and integrity of the country, endangers the security of the state, which is detrimental to India’s friendly relations with foreign countries, and content, which is likely to incite violence or disturb public order.

● The platforms also have to take into consideration India’s multi-racial and multi-religious context and exercise due caution and discretion when featuring the activities, beliefs, practices, or views of any racial or religious group.

● According to the rules, the platforms will have to put in place other access control mechanisms, 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.

● Both digital news media and OTTs operating in India will have to inform the I&B Ministry about the details of their entity, and also publish periodic compliance reports every month mentioning the details of grievances received and action taken, the rules stated.

● The new rules require OTT platforms to set up a robust three-tier grievance redressal mechanism like the digital media platforms.

The Issue with Rules:

● However, classification of content based on subjective yardsticks will be a challenge given such classification would, in practice, be based on the sensibilities of personnel of each OTT platform.

● The rules do not provide for specific grounds on which complaints can be made, and given the subjective nature of the content and diverse sensibilities of viewers, there are likely to be a multitude of complaints.

● While the rules do seek to maintain a balance between self-regulation and government control, two key provisions are tilting the balance in favour of government oversight: first, registration of the self-regulatory body is subject to MIB’s satisfaction; and second, the interdepartmental committee at level three may hear complaints referred to it by the MIB, thus skipping the first two levels of self-regulation.

● Critics argued that it gives authorities a good deal of leverage over online news publishers and intermediaries. This holds troubling implications for freedom of expression and the right to information.

● The new IT rules envision a “cumbersome” three-tier regulatory system with government oversight at the top.

● The Rules are a significant departure from the existing framework and impose considerable compliances for digital media.

Way forward:

● Balancing the need for regulation to keep out obnoxious online content that promotes violence and vulgarity with the need to preserve our constitutional values and freedom of expression is at the core of the new rules.

● As the digital space and technology for the distribution of content evolve, the regulatory framework for the digital industry will also continue to evolve. In order to ensure fine-tuning of any significant bottlenecks, implementation challenges, and prevent possible misuse of the regulations, policymakers and stakeholders should continue to engage with each other to put in place a regulatory framework that is effective and balanced.