Guest Post: The 2021 Intermediary Guidelines and their impact on OTT Platforms

This post was authored by Radhika Roy

On 25 February 2021, the Central Government notified the Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, 2021 (‘2021 Rules’). These Rules have been the subject of much controversy as social media intermediaries and media houses have challenged them in various High Courts across the country.  The Bombay High Court in AGIJ Promotion of Nineteenonea Media v Union of India stayed the operation of Rule 9(1) and Rule 9(3), the former provision mandating adherence to the ‘Code of Ethics’ and the latter creating a three-tiered structure to regulate online curated content. The High Court held that these rules contravened Article 19(1)(a) of the Constitution and transgressed the rule-making power delegated by the Information Technology Act, 2000 (‘IT Act’). This was affirmed by the Madras High Court in Digital News Publishers Association v Union of India, which noted that the order passed by the Bombay High Court had a pan-India effect.

While the Information Technology (Intermediary Guidelines), 2011 applied solely to intermediaries, the 2021 Rules cover both intermediaries and publishers of digital content, including OTT platforms (that fall under ‘publisher of online curated content). At the outset, the departure from utilising existing legislations such as the Cinematograph Act, 1952, or the Cable Television Networks (Regulation) Act, 1955, and invoking the IT Act to regulate publishers of film and television is curious. The aforementioned Bombay High Court judgement addressed this, observing that fields which stood occupied by independent legislations could not possibly be brought within the purview of the 2021 Rules.

The regulation of OTT platforms assumes particular significance given the recent controversies concerning web series that allegedly contain objectionable content or offend religious beliefs. For instance, FIRs were lodged against the makers of the web series Tandav, which led to Amazon Prime Video’s India head moving the Supreme Court for protection against arrest. Similarly, Netflix’s A Suitable Boy also triggered a police case after a political leader found the scene wherein the protagonist kissed a Muslim boy at a Hindu temple objectionable. FIRs have also been registered against the makers and producers of Mirzapur for offending religious beliefs, and a petition has been filed before the Supreme Court for portraying the Uttar Pradesh district in a negative manner.       

This blog will first set out how the 2021 Rules are applicable to OTT platforms. Second, it will examine whether the regulatory mechanisms conceived by the 2021 Rules provide unduly broad censorial powers to the Central Government, potentially threatening free speech and expression guaranteed by the Indian Constitution.

The 2021 Rules and OTT Platforms          
In February 2019, the Ministry of Electronics and Information Technology (‘MeitY’) told the Delhi High Court that the IT Act already provided stringent provisions for website blocking (under Section 69A) in case of illegal content on OTT Platforms and therefore, no mandamus could be issued to the Centre for framing general guidelines or separate provisions for OTT content. However, in February 2021, amidst rising controversies revolving around various shows, the Centre notified the 2021 Rules, Part III of which is titled “Code of Ethics and Procedure and Safeguard in Relation to Digital/Online Media”.

Rule 2(u) of the 2021 Rules defines “publisher of online curated content” as any publisher who makes available to users, on demand, audio-visual content (that is owned or licensed by the publisher) via a computer resource over the internet. OTT platforms such as Netflix, Amazon Prime Video, and Disney+Hotstar squarely fall within the ambit of such ‘publishers of online curated content’. Under Rule 8(2) of the 2021 Rules, such publishers are bound by Part III of the 2021 Rules, while Rule 9 requires such publishers to adhere to the ‘Code of Ethics’ found in the Appendix to the 2021 Rules. This Code lays down five broad principles, ranging from age classification of content to exercising due caution and discretion while depicting India’s multi-cultural background.  

Perhaps the most salient feature of Part III is its three-tier structure for redressal of grievances against content, which is applicable to both publishers of news and current affairs and publishers of online curated content. Any complaints that a publisher’s content violates the Code of Ethics or that the publisher is in breach of any rule in Part III of the 2021 Rules are addressed through the following structure:

Beyond the 2021 Rules, there will also be an establishment of an “Online Grievance Portal” by the Ministry of Information & Broadcasting (‘MIB’) where any person who objects to the content of a publisher can register their grievance. This grievance will be electronically directed to the publisher, the Ministry, as well as the self-regulating body.           

The impact of the 2021 Rules
Films released in theatres in India are subjected to pre-certification from the Central Board of Film Certification (‘CBFC’) as per the Cinematograph Act, 1952, and television programmes are governed as per the Cable Television Network (Regulation) Act, 1995. However, OTT platforms, till now, escaped the scrutiny of the law due to an absence of clarity as to which Ministry would regulate them, i.e., the MietY or the MIB. The matter was resolved in November 2020 when the Government of India (Allocation of Business) Rules, 1961 were amended to include “Films and Audio-Visual programmes made available by online content providers” within the ambit of the  MIB.     

Overregulation and independent regulatory bodies
The 2021 Rules pose a danger of overregulation vis-a-vis OTT platforms; they promote self-censorship and potentially increase government oversight over digital content.  Beginning with the second-tier of the mechanism established by the 2021 Rules, it requires a self-regulatory body to be set up which is to be headed by a Supreme Court or High Court Judge, or an independent eminent person from the field of media, broadcasting, entertainment, child rights, human rights or such other field; the members of this body, not exceeding six, are experts from various fields. Rule 12(3) dictates that the self-regulating body, after constitution, needs to register itself with the MIB. However, this registration is predicated upon the subjective satisfaction of the MIB that the body has been constituted according to Rule 12(2) and has agreed to perform functions laid down in sub-rules (4) and (5), which effectively hinders the independence of the body as the Rules fail to circumscribe the discretion that can be exercised by MIB in refusing registration to the body.

This self-regulating body can sit in appeal as well as issue guidance or advisories to the publishers, including requiring the issuance of apologies or inclusion of warning cards by publishers. However, decisions pertaining to the need to take action to delete or modify content, or instances where the publisher fails to comply with guidance or advisories of the body, are to be referred to the Oversight Mechanism under Rule 13 [Rules 12(5)(e) and 12(7)].   

Additional concerns arise at Level III – the Oversight Mechanism under Rule 13. This Oversight Mechanism requires the MIB to form an Inter-Departmental Committee (‘IDC’), which shall consist of representatives from various other Ministries; the Chairperson

of this Committee is an Authorised Officer appointed by the MIB. Rule 14(2) stipulates that the Committee shall meet periodically to hear complaints arising out of grievances with respect to decisions taken at Level I or II, or complaints referred to it directly by the MIB. This may pose certain challenges — as the IDC, which is constituted and chaired by the MIB, and consists of individuals from other Ministries, will effectively also preside over complaints referred to it by the MIB. Furthermore, the recommendations of the IDC are made to the MIB itself for issuance of appropriate orders and directions for compliance. This has the potential to create a conflict of interest, and it violates the principle of natural justice that one cannot be a judge in their own case.         

A bare perusal of the functions of Level II and Level III portrays that the powers bestowed upon the self-regulating body and the IDC overlap to a great extent. The self-regulating body may be rendered irrelevant as decisions regarding modification or removal of content or punishment of the publisher for failure to comply rest with the IDC. As the IDC is constituted by the MIB and its recommendations are referred to the MIB for issuance of orders to the publishers, for all intents and purposes, the Central Government has the final say in the online content that can be published by OTT platforms. This may make publishers wary and could have a chilling effect on freedom of speech and expression as content unfavourable to or critical of the government in power may be referred to the IDC/MIB and blocked.          

The IDC has considerable discretion when it comes to its position as an Appellate Authority. More importantly, Rule 16 allows the Authorised Officer to block content under Section 69A of the IT Act in any case of emergency may have potential for misuse. To confer upon one individual appointed by the MIB the power to block content, without providing an opportunity for hearing to the publisher, is excessive and does not provide sufficient procedural safeguards; an issue that had been glossed over by the Supreme Court while upholding the constitutionality of Section 69A and Information Technology (Blocking Rules), 2009, in Shreya Singhal v Union of India.  

In Hiralal M. Shah v The Central Board of Film Certification, Bombay,  an order of the Joint Secretary to the Government of India directing a Marathi feature film to not be certified for public exhibition was challenged andthe Bombay High Court held that the Joint Secretary was not qualified to judge the effects of the film on the public, nor did he have the experience in examination of films. The High Court observed that allowing a bureaucrat to sit in judgement over the same would make “a mockery of the substantive right of appeal conferred on the producer”. According to the Court, it was difficult to comprehend why an informed decision by an expert body, i.e. the Film Certification Appellate Tribunal constituted under the Cinematograph Act, 1952, was to be replaced with the moral standards of a bureaucrat. A similar mechanism for regulation is being constructed by way of the 2021 Rules. 

The three-tier mechanism stipulated by the 2021 Rules also raises the query as to why OTT platforms need to be regulated under the IT Act in the first place. If regulation is required, instead of adverting to the IT Act or the Cinematograph Act, 1952, which regulates traditional media, the regulatory system envisaged under the Cinematograph Act can be emulated to some extent in an alternate legislation solely governing OTT platforms. While the Cinematograph Act may be inadequate in terms of regulating new media, the current IT Rules stretch the boundaries of rule-making power of the Parliament by delving into an area of regulation that is not permissible under the IT Act.            

The 2021 Rules are subordinate legislation, and it remains contested whether Part III of the Rules could have been promulgated using the rule-making power conferred on the Central Government under the IT Act. In the case of State of Tamil Nadu v P. Krishnamoorthy, the Supreme Court held that delegated legislation could be challenged if there was failure to conform to the statute under which it was made or if it exceeded the limits of authority conferred by the enabling Act, or if there was manifest arbitrariness or unreasonableness (to an extent where the Court may say that the legislature never intended to give authority to make such rules). With respect to the 2021 Rules, when such broad and arbitrary powers are being conferred on entities which could restrict fundamental rights under Articles 19(1)(a) and 19(1)(g), it should stem from a parent Act that lays down the objective and purpose that drives such regulation. The IT Act only regulates content to the extent of specific offences under Sections 66F, 67, 67A, 67B etc. that are to be judicially assessed, and Section 79 lays down guidelines that must be followed by intermediaries to avail of safe harbour. However, by introducing a distinct class of entities that must adhere to “digital media ethics” and must constitute their own regulation bodies, there is prima facie overreach by the 2021 Rules.       

Are the IT Rules Violative of the Constitutional Rights of Free Speech and Expression?
The three-tier mechanism under the 2021 Rules may have a chilling effect on creators and producers who may be disincentivized from publishing and distributing content that could potentially be considered offensive to even a small section of society. For example, even in absence of the 2021 Rules, the makers of Tandav agreed to make voluntary cuts and tendered an apology. Similarly, despite the partial stay of the 2021 Rules by the High Courts of Bombay and Madras, OTT platforms have stated that they will play it safe and exercise restraint over potentially controversial content. After the 2021 Rules, criticism that offends the sensibilities of an individual could potentially result in a grievance under Part III, ultimately leading to content being restricted.       

In addition to this, the Code of Ethics appended to Part III states that a publisher shall “exercise due caution and discretion” in relation to content featuring the activities, beliefs, practices, or views of any racial or religious group. This higher degree of responsibility, which is ambiguous, may restrict the artistic expression of OTT Platforms. In Shreya Singhal v Union of India, the Supreme Court struck down Section 66A of the IT Act, holding that “where no reasonable standards are laid down to define guilt in a section which creates an offence and where no clear guidance is given to either law abiding citizens or to authorities and courts, a section which creates an offence and which is vague must be struck down as being arbitrary and unreasonable”. By stating that the Constitution did not permit the legislature “to set a net large enough to catch all possible offenders and leave it to the Court to step in and decide who could be held guilty”, the Supreme Court decisively ruled that a law which is vague would be void. Although a breach of the 2021 Rules does not have penal consequences, the Code of Ethics utilises open-ended, broad language whose interpretation could confer excessive discretion on the IDC in deciding what content to remove.     

Under India’s constitutional structure, free expression can only be limited to the extent prescribed by Article 19(2), and courts scrutinise any restrictions of expression stringently due to the centrality of free speech and expression to the continued maintenance of constitutional democracy. In S. Rangarajan v P. Jagivan Ram, the Supreme Court observed that the medium of a movie was a legitimate mode to address issues of general concern. Further, the producer had the right to ‘think out’ and project his own message despite the disapproval of others; “it is a part of democratic give-and-take to which no one could complain. The State cannot prevent open discussion and open expression, however hateful to its policies”. The Apex Court further stated that it was the duty of the State to protect the freedom of expression. In K.A. Abbas v Union of India, the Supreme Court upheld the constitutionality of censorship under the Cinematograph Act, but cautioned that the censorship could only be in the interest of society, and that if it ventured beyond this arena, it could be questioned on the ground that a legitimate power was being misused.  

In the aforementioned cases, the courts, while upholding censorship guidelines, acknowledged that the same had to be grounded within the four corners of Article 19(2), and the standard for censorship had to be that of an ordinary individual of common sense and prudence, and not that of a hypersensitive individual. However, in recent times, there have been regular outcries against films and web series which may offend the sensitivities of the certain sections of the public. It must be noted that the Government also has a duty to protect the speakers of unpopular opinions, and restrictions on the freedom of speech must only be a last resort when the situations provided for in Article 19(2) (e.g., public order or security of the State) are at stake. Such an approach would help allay the concerns of publishers who may otherwise either resist from creating content that could be potentially controversial or remove or modify scenes.

Conclusion
A mechanism that risks the overregulation of content on OTT platforms, as well as grants significant discretion to the Ministry by way of formation of the IDC has the potential to dilute constitutional rights. Further, with India’s burgeoning influence as a producer of cultural content, such a rigid and subjective manner of regulation inhibits artistic expression and may have a chilling effect on the exercise of free speech and expression. Publishing of content on OTT platforms is different from traditional broadcasting in the way that it is made available to the public. Streaming of content on OTT platforms is based on an ‘on-demand’ principle where viewers actively choose the content they wish to consume, and thus it may require specialised regulation. A balanced approach should be adopted for regulation of OTT platforms which adhere to the values embedded in the Constitution as well as guidelines envisioned by the Supreme Court in judgements discussed above.

This blog was written with the support of the Friedrich Naumann Foundation for Freedom.

NDTV India Ban: A Case of Regulatory Overreach and Insidious Censorship?

By Kasturika Kaumudi 

In a highly contentious move, the Ministry of Information and Broadcasting (‘MIB’) issued an order banning the telecast of the Hindi news channel ‘NDTV India’ on 9^th November, 2016. The MIB imposed this ‘token penalty’ on NDTV India following the recommendation of an Inter-Ministerial Committee (‘IMC’). The IMC had found the channel liable for revealing “strategically sensitive information” during the coverage of Pathankot terrorist attacks on 4^th January, 2016. The ban has, however, been put on hold by the MIB after the Supreme Court agreed to hear a writ petition filed by NDTV India against the ban.

The order passed by the MIB raises some important legal issues regarding the freedom of speech and expression of the press. Since the news channels are constantly in the race for garnering Television Rating Points, they may sometimes overlook the letter of the law while covering sensitive incidents such as terrorist attacks. In such cases, regulation of the media becomes necessary. However, it is tricky to achieve an optimum balance between the various concerns at play here – the freedom of expression of the press and the people’s right to information, public interest and national security.

In this post, we discuss the background of the NDTV India case and the legal issues arising from it. We also analyze and highlight the effects of governmental regulation of the media and its impact on the freedom of speech and expression of the media.

NDTV Case – A Brief Background:

On January 29, 2016, the MIB had issued a show cause notice to NDTV India alleging that their coverage of the Pathankot military airbase attack had revealed vital information which could be used by terror operators to impede the counter-operations carried by the security forces. The notice also provided details regarding the alleged sensitive information revealed by NDTV India.

In its defence, the channel claimed that the coverage had been “balanced and responsible” and that it was committed to the highest levels of journalism. The channel also stated that the sensitive information allegedly revealed by the channel regarding critical defence assets and location of the terrorists was already available in the public domain at the time of reporting. It was also pointed out that other news channels which had reported on similar information had not been hauled up by the MIB.

However, the MIB, in its order dated January 2, 2016, held that NDTV India’s coverage contravened Rule 6(1)(p) of the Programme and Advertising Code (the ‘Programme Code’ or ‘Code’) issued under the Cable TV Network Rules, 1994 (‘Cable TV Rules’). In exercise of its powers under the Cable TV Networks (Regulation) Act, 1995 (‘Cable TV Act’) and the Guidelines for Uplinking of Television Channels from India, 2011, the MIB imposed a ‘token penalty’ of a day’s ban on the broadcast of the channel.

Rule 6(1)(p) of the Programme Code:

Rule 6 of the Code sets out the restrictions on the content of programmes and advertisements that can be broadcasted on cable TV. Rule 6(1)(p) and (q) were added recently. Rule 6(1)(p) was introduced after concerns were expressed regarding the real-time coverage of sensitive incidents like the Mumbai and Gurdaspur terror attacks by Indian media. It seeks to prevent disclosure of sensitive information during such live coverage that could act as possible information sources for terror operators.

Rule 6(1)(p) states that: “No programme should be carried in the cable service which contains live coverage of any anti-terrorist operation by security forces, wherein media coverage shall be restricted to periodic briefing by an officer designated by the appropriate Government, till such operation concludes.

Explanation: For the purposes of this clause, it is clarified that “anti-terrorist operation” means such operation undertaken to bring terrorists to justice, which includes all engagements involving justifiable use of force between security forces and terrorists.”

Rule 6(1)(p), though necessary to regulate overzealous media coverage especially during incidents like terrorist attacks, is vague and ambiguous in its phrasing. The term ‘live coverage’ has not been defined in the Cable TV Rules, which makes it difficult to assess its precise meaning and scope. It is unclear whether ‘live coverage’ means only live video feed of the operations or whether live updates through media reporting without visuals will also be considered ‘live coverage’.

Further, the explanation to Rule 6(1)(p) also leaves a lot of room for subjective interpretation. It is unclear whether the expression “to bring terrorists to justice” implies the counter operations should result in fatalities of the terrorists or if the intention is to include the coverage of the trial and conviction of the terrorists, if they were caught alive. If so, it would be highly impractical to bar such coverage under Rule 6(1)(p). The inherent vagueness of this provision gives wide discretion to the governmental authorities to decide whether channels have violated the provisions of the Code.

In this context, it is important to highlight that the Supreme Court had struck down Section 66A of the Information and Technology Act, 2000 in the case of Shreya Singhal vs. Union of India, on the ground of being vague and overboard. The Court had held that the vague and imprecise nature of the provision had a chilling effect on the freedom of speech and expression. Following from this, it will be interesting to see the stand of the Supreme Court when it tests the constitutionality of Rule 6(1)(p) in light of the strict standards laid down in Shreya Singhal and a spate of other judgments.

Freedom of Speech under Article 19(1)(a)

The right of the media to report news is rooted in the fundamental right to free speech and expression guaranteed under Article 19(1)(a) of the Constitution of India. Every right has a corresponding duty, and accordingly, the right of the media to report news is accompanied by a duty to function responsibly while reporting information in the interest of the public. The freedom of the media is not absolute or unbridled, and reasonable restrictions can be placed on it under Article 19(2).

In the present case, it can be argued that Rule 6(1)(p) fails to pass the scrutiny of Article 19(2) due to inherent vagueness in the text of the provision. However, the Supreme Court may be reluctant to deem the provision unconstitutional. This reluctance was demonstrated for instance, when the challenge to the constitutionality of the Cinematograph Act, 1952 and its attendant guidelines, for containing vague restrictions in the context of certifying films, was dismissed by the Supreme Court. The Censor Board has used the wide discretion available to it for placing unreasonable restrictions while certifying films. If the Supreme Court continues to allow such restrictions on the freedom of speech and expression, the Programme Code is likely to survive judicial scrutiny.

Who should regulate?

Another important issue that the Supreme Court should decide in the present case is whether the MIB had the power to impose such a ban on NDTV India. Under the current regulatory regime, there are no statutory bodies governing media infractions. However, there are self-regulatory bodies like the News Broadcast Standards Authority (NBSA) and the Broadcasting Content Complaint’s Council (BCCC).The NBSA is an independent body set up by the News Broadcasters Association for regulating news and current affairs channels. The BCCC is a complaint redressal system established by the Indian Broadcasting Foundation for the non-news sector and is headed by retired judges of the Supreme Court and High Courts. Both the NBSA and the BCCC regularly look into complaints regarding violations of the Programme Code. These bodies are also authorized to issue advisories, condemn, levy penalties and direct channels to be taken off air if found in contravention of the Programme Code.

The decision of the MIB was predicated on the recommendation made by IMC which comprises solely of government officials with no journalistic or legal background. The MIB should have considered referring the matter to a regulatory body with domain expertise like the NBSA that addresses such matters on a regular basis or at least should have sought their opinion before arriving at its decision.

Way Forward

Freedom of expression of the press and the impartial and fair scrutiny of government actions and policies is imperative for a healthy democracy. Carte blanche powers with the government to regulate the media as stipulated by Cable TV Act without judicial or other oversight mechanisms pose a serious threat to free speech and the independence of the fourth estate.

The imposition of the ban against NDTV India by the MIB under vague and uncertain provisions can be argued as a case of regulatory overreach and insidious censorship. The perils of such executive intrusion on the freedom of the media will have a chilling effect on the freedom of speech. This can impact the vibrancy of the public discourse and the free flow of information and ideas which sustains a democracy. Although the governmental decision has been stayed, the Supreme Court should intervene and clarify the import of the vague terms used in the Programme Code to ensure that the freedom of the press is not compromised and fair and impartial news reporting is not stifled under the threat of executive action.

Kasturika Kaumudi is a Programme Officer with the Centre for Communication Governance at National Law University Delhi

TRAI releases Regulations enforcing Net Neutrality, prohibits Differential Pricing

Written by Siddharth Manohar

The Telecom Regulatory Authority of India (TRAI) has come out with a set of regulations explicitly prohibiting differential pricing for data services in India.

3. Prohibition of discriminatory tariffs.— (1) No service provider shall offer or charge discriminatory tariffs for data services on the basis of content.

(2) No service provider shall enter into any arrangement, agreement or contract, by whatever name called, with any person, natural or legal, that has the effect of discriminatory tariffs for data services being offered or charged to the consumer on the basis of content

TRAI recently concluded a public consultation process regarding differential pricing in data services (resources). The consultation paper covered all differently-priced or zero-rated services offered through data. The process has witnessed tremendous public participation, with a spirited campaign by Internet activists (Savetheinternet.in) and a counter-campaign by Facebook where it garnered support through users by using the narrative of connecting those who have no access (https://www.facebook.com/savefreebasics).

CCG submitted a formal response as part of this process, which you can read here, and filed an additional counter-comment signed by ten different civil society and research organizations.

The consultation process also involved a public discussion on the questions raised, where the usual suspects were all present – telecom companies arguing for differential pricing, and internet activists against. Also present were startup- and user- representatives.

Facebook’s telecom partner for carrying the Free Basics platform in India —Reliance Communications — was then instructed by TRAI to put a hold on rolling out Free Basics until they came up with a clear position on differential pricing and net neutrality. The regulator later confirmed that they received a compliance report to this effect as well. Facebook had been aggressively pursuing its campaign to collect support in favour of its platform for the entire duration of the public consultation.

TRAI has clarified that these regulations ‘may’ be reviewed after a two year period, or at an earlier time as decided by the Authority. An exception to the prohibition has also been included, to account for emergency services and services offered during ‘times of grave public emergency’. An additional exception is that of closed networks which charge a special tariff for their usage.

[We will shortly update the piece with more analysis of the regulations]