What lies in store for non-compliant intermediary platforms?

Despite the three-month window for enforcing the IT guidelines ending on May 25, experts believe that the government may give the platforms some leeway by extending the deadline

e4m by Javed Farooqui
Published: May 26, 2021 9:08 AM  | 8 min read
It guidelines

With a majority of the digital media platforms failing to comply with the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021, it will be interesting to see what course of action the government will take against the errant platforms.

Notified on 25th February 2021, the intermediary guidelines and digital media ethics code cover social media, over the top (OTT), and digital news platforms. While it has met with stiff resistance from the platforms, the government has contended that it has ensured a level-playing field by bringing new-age platforms under the regulatory framework.

Among social media platforms, Facebook, which owns Facebook, WhatsApp, and Instagram, has said that it will implement the guidelines, but it has sought more time for the same.

Twitter, which has been facing the government's ire in recent times, has not complied with the guidelines despite being a significant social media intermediary.

Koo, which has 6 million followers, has implemented the guidelines as it comes under the definition of a significant social media intermediary.

Barring a few, the majority of the OTT and digital news publishers are also yet to comply with the guidelines. Most of the platforms are expecting the government to grant more time for implementing them.

According to a Hindustan Times report, the government will take action against intermediaries who fail to comply with the guidelines. “The rules were notified on February 25 and social media intermediaries have been given three months to comply. So far, none of the prominent significant social media intermediaries have sent the ministry any intimation of such appointments. It is not necessary they inform the ministry, they can even furnish the details on the website. Either way, they have to comply," the report quoted an official as saying.

A second official told the paper that the platforms will lose legal immunity if they fail to comply. “According to part 7 of the new guidelines, if the intermediary does not follow the rules, it is liable for punishment under Indian law, as section 79 of the (IT) Act will no longer apply.”

Section 79 of the IT Act provides intermediaries exemption from punishment for third-party content posted on its website.

Digital rights activist and Medianama founder Nikhil Pahwa said that the government is unlikely to go after intermediary platforms since the guidelines are on a sticky wicket from a legal point of view. "IT Rules 2021 are coming into effect tomorrow, and even if the deadline won't get extended, the Govt is unlike to enforce all the provisions & hold platforms to account unless it really needs to, because the platforms could then move the court to challenge the guidelines," Pahwa said in a series of tweets on Tuesday.

The government, he added, wouldn't want to give platforms a reason to go to court because these rules are so majorly unconstitutional that they won't want to risk embarrassment in courts. "The rules are already being challenged on such grounds btw. Need more."

He also stated that the government was expected to issue a set of FAQs to explain exactly how these guidelines are being implemented but the same has not yet been issued. "It's clear that the FAQs are not ready yet. Implementation of these rules is unclear until these FAQs are issued. It's very likely that the deadline will be extended to give @GoI_MeitY and MIB time to figure these rules out, because the rules themselves are a complete mess, and many propositions are arbitrary."

"The guidelines will be implemented but a little more time is needed. Many of the OTT platforms have started implementing the guidelines. So the Tier-1 is in place since it is easy to implement," said a senior regulatory executive of a leading media firm.

The executive also highlighted that the Retired Judges who will helm the Self-Regulatory Body are not liking the fact that their orders can be challenged before bureaucrats. "Based on several interactions what I have gathered is that the Retired Judges don't like the fact that the decision of the Self-Regulatory Body can be reviewed by a Tier-3 mechanism which is chaired by a bureaucrat. They are saying that the dignity of the office should be maintained. Ultimately, we will find somebody but this is going to be a growing concern," the executive.

The executive also stated that the ministry has allowed OTT platforms to classify new OTT content as per the guidelines as re-classifying old content is a manual process and is cumbersome. Most OTT platforms have lakhs of hours of content. "The ministry has told us that we don't need to worry about old content. We can re-classify library content at our own pace but the fresh content that is being produced has to be classified immediately. We have already implemented this," the source noted.

CEO and Co-Founder, The Quint and DigiPub office-bearer Ritu Kapur said DIGIPUB has formed a self-regulatory body. "It's really up to individual DIGIPUB members to decide to what extent they are implementing the guidelines. DIGIPUB has also formed a self-regulatory body under Justice (Retired) Madan Lokur."

She also stated that the digital news platforms have not received any communication from the MIB on the modalities of implementing the guidelines.
Kurate Digital Consulting senior partner Uday Sodhi said that the OTT platforms will not find it difficult to implement the guidelines as most of them have started implementing age filters for content. "Due to Covid-19, all employees are not around so the ministry might be a little lenient in the beginning. It might seek compliance reports from platforms and give them another 15 days to implement the guidelines. The government is more concerned about digital news and social media. OTT is a lesser problem for them," he stated.
While notifying the IT guidelines, the government had said that the new rules will empower ordinary users of social media, embodying a mechanism for redressal and timely resolution of their grievance.
It also stated that the rules about digital media and OTT focus more on in-house and self-regulation mechanisms whereby a robust grievance redressal mechanism has been provided while upholding journalistic and creative freedom.

Under the guidelines, an intermediary will have to provide a grievance redressal mechanism for resolving complaints from the users or victims. Intermediaries will have to appoint a Grievance Officer to deal with such complaints and share the name and contact details of such officers. The Grievance Officer shall acknowledge the complaint within 24 hours and resolve it within fifteen days from its receipt.

Intermediaries will have to remove or disable access within 24 hours of receipt of complaints of content that show individuals in full or partial nudity, in a sexual act or being impersonated with morphed images, etc. Such a complaint can be filed either by the individual or by any other person on his/her behalf.

To encourage innovations and enable the growth of new social media intermediaries without subjecting smaller platforms to significant compliance requirements, the Rules make a distinction between social media intermediaries and significant social media intermediaries.

Significant Social Media Intermediary will have to appoint a Chief Compliance Officer who shall be responsible for ensuring compliance with the Act and Rules. They also have to appoint a Nodal Contact Person for 24X7 coordination with law enforcement agencies. Such a person shall be a resident in India. The significant social media intermediary will also have to appoint a Resident Grievance Officer who shall perform the functions mentioned under Grievance Redressal Mechanism. Such a person shall be a resident in India.

The Significant Social Media Intermediary will also have to publish a monthly compliance report mentioning the details of complaints received and action taken on the complaints as well as details of contents removed proactively by the significant social media intermediary.

The government has two key mandates for OTT platforms. One is the self-classification of content and the other is a three-tier grievance redressal mechanism.

The OTT platforms, which are also called the publishers of online curated content in the rules, would self-classify the content into five age-based categories - U (Universal), U/A 7+, U/A 13+, U/A 16+, and A (Adult). Platforms would be required to implement parental locks for content classified as U/A 13+ or higher, and reliable age verification mechanisms for content classified as “A”.

Further, the publisher of online curated content shall prominently display the classification rating specific to each content or programme together with a content descriptor informing the user about the nature of the content, and advising on viewer description (if applicable) at the beginning of every programme enabling the user to make an informed decision, prior to watching the programme.

The ministry has also established a three-level grievance redressal mechanism under the rules with different levels of self-regulation. The first tier is self-regulation by the publishers in which the publisher will have to appoint a Grievance Redressal Officer based in India who shall be responsible for the redressal of grievances received by it. The officer shall take a decision on every grievance it receives within 15 days.

The second tier is self-regulation by the self-regulating bodies of the publishers. Such a body will have to register with the MIB. This body will oversee the adherence by the publisher to the Code of Ethics and address grievances that have not been resolved by the publisher within 15 days.

The third tier will see the formulation of an oversight mechanism by the MIB. The ministry shall publish a charter for self-regulating bodies, including Codes of Practices. It shall establish an Inter-Departmental Committee for hearing grievances.

The digital news platforms will have to follow the journalistic conduct of the Press Council of India (PCI) and the Programme Code under the Cable Television Network Act, which are already applicable to print and TV. This, the government said, will provide a level playing field.

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