27 September 2021
This is in continuation to the series analysing the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (“2021 Rules”). In the first part, we traced the evolution of intermediary liability and the key changes brought about by the 2021 Rules. In the second part, we discussed the consequences of non-compliance by intermediaries which, inter alia, disentitle them from claiming the safe harbour protection under Section 79 of the Information Technology Act, 2000 (“Act”).
In this part, we delve into the part of 2021 Rules that publishers of news and current affairs content (“digital news publishers”) and publishers of online curated content or over-the-top services/ platforms (“OTT platforms”) have to adhere to, and the recent judicial developments in this regard.
Who are digital news publishers and OTT platforms and why are they relevant?
Part III of the 2021 Rules seeks to regulate digital news publishers and OTT platforms (“publishers”) that have a physical presence in India OR conduct systematic business activity of making content available in India.[1] Notably, Part III of 2021 Rules seeks to empower the Ministry of Information and Broadcasting, Government of India (“Ministry”), to regulate these publishers operating in the online space, seemingly in an attempt to bring them on par with traditional forms of media that are regulated, inter alia, by the Cinematograph Act, 1952, or the Cable Television Networks (Regulation) Act, 1995, as the case may be.
In order to understand who digital news publishers are, we may consider the definition of ‘news and current affairs content’, which has been defined in the widest terms to include even digital content that is in the nature of news and current affairs, made available on the internet.[2] Similarly, the definition of digital news publishers is stated in wide terms to include any entity which is functionally similar to an online paper, news portal or agency.[3]
Further, any audio-visual content being made available ‘on demand’, such as films, documentaries, etc., is deemed to be ‘online curated content’.[4] Pertinently, the publishers of online curated content, who play a significant role in determining such content being made available and provide a computer resource to users for accessing such content[5] (for instance, OTT platforms), are specifically recognised, in an attempt to distinguish such platforms from intermediaries of information,.
A significant aspect in both definitions of publishers is that any individual or user not transmitting content in the course of a business activity will be excluded from the scope of regulation in Part III.
Framework for regulation of digital media
While the Act does not strictly contemplate regulation of digital media, the 2021 Rules seek to bring such entities under its scope. The rationale behind this can be traced back to the object of the Act, which sought to recognise ‘transactions carried out by means of electronic data interchange and other means of electronic communication’, which would be broad enough to cover any exchange of information over the internet.
Notably, this aspect is under consideration by the Bombay High Court in a challenge[6] filed against the 2021 Rules. The Bombay High Court, while passing an interim order on August 14, 2021, observed that the Act does not seek to censor any content on the internet, except to the limited extent, as set out in Section 69A of the Act.
While this may be, Part III seeks to impose a mandatory duty on publishers to regulate their content, in accordance with the code of ethics prescribed in the 2021 Rules. Digital news publishers are mandated to observe the existing norms under the Press Council Act, 1978, and Cable Television Networks (Regulation) Act, 1995. Although, the Bombay High Court observed that the norms currently governing the press are moral and not statutory in nature, Part III, however, seeks to exalt these norms to the status of mandatory compliance.
Further, the code of ethics effectively prohibits OTT platforms from publishing any ‘illegal content’ based on factors such as sovereignty and security of the state, international relations, etc. The code of ethics further prescribes the norms based on which the content must be classified by OTT platforms.
To ensure compliance with the code of ethics and to address grievances that may be raised by any person regarding content published, Part III envisages a self-regulating mechanism for the disposal of grievances, which are divided into three levels:
At level I, the publishers are required to set up a grievance redressal mechanism and appoint a grievance officer based in India, who shall be in charge of addressing grievances and will act as a nodal point for level II and level III.
At level II, the publisher or its association is required to set up a seven-member self-regulating body for inter alia addressing the grievances that are not addressed by the grievance officer, or for hearing appeals arising from the decision of the grievance officer.
At level III, the 2021 Rules envisage an oversight mechanism to be set up by the Ministry by establishing an inter-departmental committee, which shall hear grievances not disposed by the self-regulating body or appeals or complaints for violation of the code of ethics. The inter-departmental committee, comprising members from various ministries of the Government of India and an authorised officer acting as the chairperson, has been conferred with extensive powers to regulate content, including deleting content to prevent incitement.
Pertinently, while an aggrieved person who has a grievance against a publisher has been granted the right of appeal, there is no right of appeal conferred on publishers to challenge any decision of the self-regulating body, the inter-departmental committee or any action of the Secretary of the Ministry, which leaves publishers without any statutory remedy.
Further, Section 85 of the Act imputes criminal liability upon directors, key managerial personnel and officers of an entity accused for commission of an offence, not only for their active participation or consent in the commission of a crime, but also for their negligence at the time when the offence was being committed.
Considering the sweeping nature of the 2021 Rules, it is no surprise that they have come under challenge before various High Courts. The Bombay High Court in the above-mentioned challenge to the Rules, directed an interim stay on Rules 9(1) and 9(3) pertaining to adherence to the code of ethics and establishment of the grievance redressal mechanism, prima facie opining that the rule does not conform to the statute and is an intrusion into the fundamental rights guaranteed under Article 19(1)(a) of the Constitution of the publishers. The Bombay High Court, while underscoring the importance of dissent in a democracy, further observed that the Government exceeded its rule making power designated under Section 87 of the Act, as the Government has sought to make several actions of publishers liable, by way of a subordinate legislation.
While this may be, the operation of Rule 16 of Part III which empowers the Secretary of the Ministry to issue directions for blocking of any information, as an ex-parte interim measure, in case of an emergency under any of the grounds specified in Section 69A of the Act (subject to final approval upon recommendations from the inter-departmental committee) was not stayed by the Bombay High Court, which observed that this provision would fall within the scope of the IT Act.
Close on its heels, the Madras High Court, on September 16, 2021, passed an interim order[7], in respect of Rule 3 and 7 (pertaining to intermediaries), indicating that actions taken thereunder would be subject to the result of the petitions. The Madras High Court further observed that the aforementioned order of the Bombay High Court in so far as Rule 9, ought to have a pan-India effect, noting that prima facie, there was substance in the grievance of the petitioner that “the oversight mechanism to control the media by the Government may rob the media of its independence and the fourth pillar of democracy may not at all be there”.
Independently, the Kerala High Court in March this year, in a challenge before it[8], passed an order restraining the Central Government from taking any coercive steps against the petitioner or its representatives for failure to comply with the 2021 Rules.
Proceeding further, the 2021 Rules also mandates that publishers are required to furnish all information pertaining to its entity and file a monthly compliance report, mentioning the details of the grievances received and the actions taken by the grievance officer in redressal to the Ministry.[9] Further, publishers and self-regulating bodies are required to make full disclosures on a monthly basis of the information and action taken pertaining to grievances.[10] Lastly, publishers are required to preserve records of content transmitted by it for a minimum period of sixty days and make it available to the self-regulating body or the Central Government, or any other Government agency, as may be requisitioned by them for implementation of the 2021 Rules.[11]
Status of challenges against Part III
The rules were touted to establish a “soft touch progressive institutional mechanism with level-playing field”. However, given the manner in which they have been brought into force, and the effect they can have, can directly impinge upon the fundamental rights guaranteed under the Constitution of India, particularly that of freedom of speech and expression, the challenges to its constitutionality are not seemingly unjustified, more so considering the prima facie observations made by the various High Courts over the last few months.
It is therefore under these circumstances that the focus turns to the Supreme Court of India, which is scheduled to hear petitions filed by the Central Government, seeking transfer of pending cases from the various High Courts to the Supreme Court on October 14, 2021, on a submission that all the cases pending before various High Courts need to be heard for a conclusive view and to prevent conflicting decisions.[12]
For further information, please contact:
Ankoosh Mehta, Partner, Cyril Amarchand Mangaldas
ankoosh.mehta@cyrilshroff.com
[1] Proviso to Rule 8, 2021 Rules
[2] Rule 2 (1)(m), 2021 Rules
[3] Rule 2 (1)(t), 2021 Rules
[4] Rule 2 (1)(q), 2021 Rules
[5] Rule 2 (1) (u), 2021 Rules
[6] Agij Promotion of Nineteenonea Media Pvt. Ltd. & anr. v Union of India & anr WP (L) No. 14172 of 2021 and Nikhil Mangesh Wagle v Union of India PIL (L) No. 14204 of 2021.
[7] Digital News Publishers Association v. Union of India WP No. 13055 of 2021 and T.M. Krishna v. Union of India WP No. 12515 of 2021
[8] Live Law Media Private Limited and ors. v Union of India and anr. WP(C) No. 6272 of 2021 and The News Broadcasters Association and Ors. v Ministry of Electronics and Information Technology WP(C) No. 13675 of 2021
[9] Rule 18, 2021 Rules
[10] Rule 19, 2021 Rules
[11] Rule 19(3), 2021 Rules
[12] The information can be found at: https://www.livelaw.in/top-stories/it-rules-2021-supreme-court-lists-centres-transfer-petitions-connected-cases-after-6-weeks-181032; last visited on September 7, 2021.
