IFF, DIGIPUB, BIF react to intermediary rules for digital media players

While IFF and DigiPub have raised several concerns about the intermediary rules, the BIF has welcomed the guidelines

e4m by exchange4media Staff
Published: Mar 1, 2021 7:36 AM  | 9 min read
social media

Internet watchdog Internet Freedom Foundation (IFF), independent policy forum and think-tank Broadband India Forum (BIF), an association of independent digital news publishers DigiPub have issued public statements airing their views on the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (Intermediary Rules) that was notified by the government on Friday.

While IFF and DigiPub have raised several concerns about the intermediary rules, the BIF has welcomed the guidelines saying that the self-regulation of Online Curated Content Platforms (OCCPs) is a responsible and mature step. However, it added that there are concerns about some specifics of the Rules that have been notified on 25th February 2021.

IFF provided an in-depth and legal analysis of the Intermediary Rules breaking down the top five changes that impact the digital rights of the consumers.

According to IFF, the creation of two categories - social media intermediary and significant social media intermediary - will bring a high level of government discretion in determining which platforms need to comply with what regulations. The threshold for a significant social media intermediary is 5 million registered users. "This threshold is vague, and it enables the Central Government to enforce discriminatory compliances," the IFF said.

The extension of the data retention period to 180 days for investigative purposes and the fact that data has to be preserved even after the user deletes the account raises the possibility of surveillance in the absence of a data protection law and any kind of oversight on how surveillance operates in India.

The voluntary verification of user accounts by significant social media intermediaries using any appropriate mechanism, including the active Indian mobile number of the user, could lead to a scenario where the voluntary becomes mandatory, as is the case with many other technologies which were introduced as “voluntary” but eventually made mandatory in an indirect manner. "It would then have severe implications for anonymity and privacy, which are essential for users of social media intermediaries, for example, political dissenters," the internet watchdog said.

More worrying is the fact that social media entities will collect data of government IDs without any regulatory body, such as a data protection authority, to ensure it is used only for verification.

The tracing of the originator of information by significant social media platforms will give rise to the possibility that the government will break any type of end-to-end encryption to gain knowledge of who sent what message and also get to know its contents. "Also, this specific requirement will break existing protocols for the deployment of end-to-end encryption that has been built through rigorous cybersecurity testing over the years," the IFF said.

According to the IFF, the most significant development in the Rules is the regulation of OTT platforms and digital news media when they use other intermediary sites/apps such as Twitter or Facebook and when they host news media content on their own website/app. It is worth mentioning that the 2011 Rules did not regulate Digital News Media and OTTs.

The IFF also questioned the legality of the rules for digital news and OTT given that the Rules have been framed under the Information Technology Act, 2000, and as such, MeitY is the nodal ministry to administer these rules. However, as per the Intermediary Rules, Part III will be administered by the Ministry of Information and Broadcasting [Rule 8(1)].

"Digital news media and OTT platforms were not previously regulated under the provisions of the IT Act. This was changed with a notification under the Business of Allocation Rules. But this notification only confers administrative clarity on which ministry gets to administer the sector. It does not create the power to exercise it. For this, a clear parliamentary enactment is necessary. However, instead of going to parliament, the Intermediary Rules framed under the IT Act seek to expand the scope of regulation under the purview of the IT Act to include digital news media and OTT platforms. This amounts to the executive amending parliamentary legislation and is not permissible under the Constitution," the IFF explained.....

The rules also suffer from an excessive delegation of powers. As an example, the Rules have established a non-judicial adjudicatory process to resolve grievances regarding content published by Digital News Media and OTTs. They have also created an adjudicatory body which is the “oversight committee”. This is even though the IT Act does not specifically empower the Government to do so. This non-judicial adjudicatory process has been discussed in detail below.

The IFF noted that no threshold requirement of users or readership has been contemplated to differentiate between digital news media on the basis of size and scale, as has been done in Part II in the case of social media intermediaries and significant social media intermediaries. It also pointed that there is no clarity as to how foreign news media organisations are sought to be regulated by Indian authorities.

Digital News Media and OTTs have to adhere to a Code of Ethics which has been laid down in the Appendix to the Rules. The criteria provided in the Code of Ethics are vague, overbroad, and will have a chilling effect on the free speech of publishers, as well as the right to access information for consumers of content.

The IFF stated that the three-tier grievance redressal mechanism envisages much more than ‘minimal government interference’. While publishers are expected to self-regulate at the first tier, the provisions of the Rules are too onerous for self-regulation to effectively be complied with.

While level II of the 3-tier mechanism is framed as the second layer of self-regulation, it is in fact the first layer of government control as the Chairman of the self-regulatory body is suggested to be a retired Judge of the High Court or Supreme Court, and even though the body is ostensibly expected to be appointed/elected by the media community, the MI&B retains approval power over the composition of the body.

On the oversight mechanism, the IFF said that an aggrieved person can escalate a complaint up to the government, or the Government can directly refer a complaint to this Inter-Departmental Committee. The Intermediary Rules provide emergency powers to the MIB in cases where “no delay is acceptable”. The Secretary may if she/he is satisfied that it is necessary or expedient and justifiable issue directions for blocking of online content to persons, publishers, or intermediary in control of hosting such information, without giving them an opportunity of hearing.

In a letter to MIB, DIGIPUB welcomed the initiative and statements by the MIB stressing the need for self-regulation of all media including digital news media. However, it added that there are some concerns about some specifics of the Rules (Rules) that have been notified on 26th February 2021. Till these concerns are taken care of, the DIGIPUB has urged the government to repeal the rules or keep them on hold.

"We offer once again to have consultations with stakeholders before notifying these Rules. We ourselves wrote to the Honourable Minister for Information and Broadcasting on December 2, 2020, requesting to be part of a consultation process, but never received a reply. We believe it is still not too late. We request you to repeal these Rules, or at least put them on hold until meaningful consultations are undertaken with all the stakeholders," DIGIPUB said.

"These Rules in some places appear to go against the fundamental principle of news and its role in a democracy. While rules and laws already exist to hold news media accountable, the aforesaid rules enable the executive government to even remove content published as current affairs or news (Rule 14.) among other things," DIGIPUB said in the letter.

The digital news publisher body said that there are some other anomalies in the rules as formulated. "In the Rules as drafted, the expression may invite adverse consequential action, such as in the case of defamation. Such action should only happen after adjudication by open courts of law, on legal principles. This entire legal process is bypassed by the Rules, in as much as, upon a complaint of defamation, a body consisting of bureaucrats and controlled by the Central Government may decide the merits and block access to the content of any current affairs publication."

Likewise, it stated that whether or not a publication is pornographic or offends any other law, is a matter of due process and adjudication by an open and independent judiciary. All these powers will now be wielded by a Government of India body. This also goes against the principle of separation of powers, DIGIPUB noted.

DIGIPUB also feels that giving government servants the power to define reasonable restrictions may inhibit the news media from doing its job. It also said reasonable restrictions must be demonstrably and strictly necessary to the interests enumerated in Article 19(2), and must also be reasonable, fair, and just.

It also pointed out that the 'news and current affairs content’, ‘newspaper’ and a ‘publisher’ of the same, are not recognised by the IT Act at all. "When the parent statute does not comprehend these operations, the delegated legislation within these Rules need not take into its ambit digital news."

Meanwhile, Broadband India Forum (BIF), the leading independent Think-Tank and Policy Forum for Digital Communications in the country, stated that the IAMAI led measure by OCCPs (Online Curated Content Providers) in adopting the Self-Regulation Code and Toolkit for the sector is a responsible and mature step, and is in the spirit of the TRAI’s Recommendations on Regulatory Framework for Over-The-Top (OTT) Communication Services as issued on 14th September 2020. BIF complimented IAMAI and its member organisations on this proactive and progressive step taken by the Industry.

BIF president TV Ramachandran shared, “BIF has always advocated liberalisation and responsible self-regulation for the industry, as it encourages greater competition and innovation in the sector, which eventually benefits the end consumers. In the absence of any evident market failure in this vertical, we feel that the adoption of a Self-Regulation code and toolkit by the industry is the right way forward. BIF extends its compliments to the IAMAI and its member OCC companies for this proactive gesture.”

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