A glimpse at the IT (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021
Introduction
OTTs or Over The Top streaming services are instrumental in delivering content through the medium of Internet, instead of the classic satellite-based model of content dissemination. In the recent years, there has been an unprecedented surge of online content creation and consumption. Especially in the wake of the Covid-pandemic, people have turned to OTT platforms, which have offered entertainment to their dull quarantined life.
Generally, OTTS can be classified as being used for purpose of video content, messaging and voice calling, and audio applications. Some examples of OTT for television and video are Apple TV, Amazon Fire Stick, Netflix, Amazon Prime, Disney Hotstar, etc. As far as OTT for messaging and voice calling is concerned platforms WhatsApp, Facebook messenger, Skype, WeChat, are some examples. Lastly, OTT for audio application can be SoundCloud, Spotify, etc.
The Early Phase of OTT Regulation
Initially, OTT platforms were not regulated by any legislation. In light of this lack of regulation, they adopted self-regulation codes to ensure that their content is not externally censored by the Government. To this effect, a few such OTTs signed the Universal Self-Regulation Code for Online Curated Content Providers in 2020. The purpose of this Code being that the online content could be brought under the scope of the fundamental right to free speech and expression as provided under Article 19 of the Indian Constitution. Thus, clearly specifying that any kind of content moderation or limitation should be as per the reasonable restrictions envisaged under Article 19(2).
In addition, there were provisions to ensure that content is classified as per the age. This would ensure that consumers can chose the type of content they want to consume. Moreover, there was also a stipulation that the content would be described in order to guide the consumers better. The Code also came up with a grievance redressal system. However, the Ministry of Information and Broadcasting did not recognize this Code as it was of the view that the self-regulation mechanism would not be well implemented, owing to the lack of third party oversight.
Shortly thereafter, the government notified the Government of India (Allocation of Business) Three Hundred and Fifty Seventh Amendment Rules, 2020 (Amendment Rules). As per which the Government brought OTT platforms under the ambit of Ministry of Information and Broadcasting. However, there still remained a lack of regulation for these platforms.
The New Intermediary Rules- A Semblance of OTT Regulation
On 25 February 2021, the Ministry of Electronics and Information Technology notified the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021. As per the Preamble of these Rules, they have been formulated by the Ministry in exercise of their power under Section 87(1) (z) and (zg) of the Information Technology Act, 2000 with a view to supersede the 2011 Intermediary Rules.
As per the Code of Ethics incorporated in these Rules, any online curated content has to adhere to the set criteria to maintain integrity, sovereignty and security of nation. In addition, it should not be opposed to public order or detrimental to the foreign relations. Moreover, the intermediary platforms have to take into consideration India’s diversity and hence ensure to take caution and demonstrate sensitivity when publishing the content on its platform.
It is interesting to note that the classification for such content is slightly different from the classic censorship model adopted for the cinematographic films. Since, now instead of just ‘U’ or ‘A’ classification there are more focused demarcations with respect to the age of the viewers. These are:
- ‘U’- for all age groups
- ‘U/A 7+’- it means that those above the age of 7 can view the content however the ones aged less than 7 will require parental guidance.
- ‘U/A 13+’- the same applies although here the age to be considered will be 13
- ‘U/A 16+’- the same applies although here the age to be considered will be 16
- ‘A’- restricted to adults only
Moreover, there are additional heads under which the content can be categorized such as theme, violence, sex and nudity, drug and substance abuse, language and Horror. There is also a duty on intermediaries to provide for parental controls for content that is U/A 13+ or higher. Also, for ‘A’ content the platform has to implement an age verification protocol.
Part I of the Schedule to the 2021 Rules also mention that while classifying films and other entertainment shows certain additional factors can be considered such as context, theme, tone and impact, and target audience. Moreover, in terms of regulating the content the Rules specify a three-tier regulation mechanism. The first level is self-regulation of content by the publisher itself. The second level is self-regulation by the self-regulating bodies of the publishers. Whereas, the third level is that of oversight mechanism by the Central Government.
As per the first tier, the publisher of the content will acknowledge the receipt of the complaint within 24 hours. Moreover, the stipulated time period for addressing any grievance is fifteen days. In case the complainant is not satisfied with the decision, then an appeal to the self-regulatory body is also possible. The Rules state that this body will also be vested with certain powers such as censuring, modifying or deleting content, etc. The final tier comprises of an inter-ministerial committee which will perform the oversight function. This would imply that government has reserved for itself overriding powers, which may even grant it the ability to censor content.
Conclusion
Although it is too soon to comment on the effectiveness of these intermediary rules, it cannot be negated that such a move is highly welcomed. The government, while recognizing the need to regulate digital media platforms, has exhibited some semblance of a standardized framework. Especially since these Rules focus on the need for an ethical digital media space, it would ensure that the users accessing such platforms are protected and their interests are looked after. However, on the other hand there is the threat of censorship of content by the Government under the garb of regulating OTTs.
Hence, there is a fine line between regulating and censoring, and one cannot be compromised for the sake of the other. There is not an iota of doubt that any movie or show might end up hurting the sentiments of one community or the other, especially since India is a diverse nation where people of different faith and culture reside. But creative freedom should be recognized if we are to promote and reward creativity in our society.
