OTTs to come under the Government scanner with 3-tier checks
India has felt a pressing need to regulate Over the Top (OTT) platforms such as Netflix, Amazon Prime, Disney+ Hotstar, Voot, AltBalaji after some of them aired shows that ran into controversies and legal tussles and some shows that hurt religious sentiments. Currently, social media companies or even the OTT platforms are not responsible for content, unlike traditional media firms.
In order to regulate the content on the OTT platforms, the Government has proposed new rules that will cover media companies such as Facebook and also OTT platforms. These platforms would also have to carry ratings such as U (universal) or A (adult) — something they are not required to do currently.
The Centre has laid down the rules and the framework for regulating both – social media companies as well as OTT platforms – which remain largely unregulated, although some provisions of the Information Technology Act apply to them. The rules which are in finalization process will also be applicable to digital news media.
In the document, titled Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, 2021, the Government cites powers provided to it under section 87 of the Information Technology Act, 2000. This section allows the government to make rules to carry out the provisions of the law by notification in the Official Gazette and in the Electronic Gazette.
The aforementioned guidelines would define social media companies and would suggest a three-tier mechanism for regulation of all online media, define the process for tracing the first originator, and confer blocking powers to an Inter-Ministerial Committee.
The first tier of the regulatory mechanism is grievance redressal by the company itself; and the second level involves a Press Council of India-like regulatory body that will be headed by a retired judge of a high court or the Supreme Court. The Inter-Ministerial Committee that forms the third tier will be headed by a Joint Secretary level officer from the Ministry of Information and Broadcasting. The Inter-Ministerial Committee that is at the apex of the regulatory framework will have representatives from the ministries of IT, Information and Broadcasting (I&B), Home, Law, External Affairs, Defence, and Women and Child Development.
The Inter-Ministerial Committee, like the IT ministry, can also recommend blocks or take downs while regulating content.
The Ministry of I&B and Electronics and Information Technology is working to formulate a comprehensive framework to regulate content and intermediaries.
Apart from OTT platforms, social media companies such as WhatsApp and Twitter are facing the heat from the state machinery apart from being dragged to the Courts over an update in usage policy in case of the former, and non-compliance with take down orders in the case of the latter.
According to the rules, a significant social media intermediary may be defined on the basis of the number of users for which the government is yet to set a threshold. They also involve intermediaries appointing a Chief Compliance Officer who will be responsible for ensuring compliance with the law and would be held liable if the intermediary fails to observe due diligence while discharging its duties.
There is also going to be a provision in the rules to tackle fake news which will require the social media intermediaries, that operate primarily in the area of messaging, to enable the identification of the first originator.
The rules mandate the creation of a grievance redressal portal as the central repository for receiving and processing all grievances requiring the intermediaries to act on certain kinds of violations within 24 hours, and on all concerns of a complainant within 15 days.