Arbitrary regulations for digital content

The job of any regulator is to ensure a level-playing field and not to stifle creativity

The draft rules unveiled by the NDA government to regulate social media companies, streaming service providers and digital news publishers have raised concerns over privacy and censorship. The proposed regulatory framework contains several aspects that are sweeping, arbitrary and deeply flawed from the constitutional standpoint. The new Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, 2021, seek to cover social media companies such as Facebook and Twitter, over-the-top platforms like Netflix, Amazon Prime and Hotstar and also the digital news publishers. The key problem is that the digital news outlets are bracketed with the other two categories, though news is an altogether different proposition. This casts a shadow on media freedom. Bringing digital news media under the purview of the Information Technology Act is hugely problematic. The new rules come against the backdrop of a string of controversies over the content of certain shows on OTT platforms, the government’s demand to block some social media handles, including those of news platforms, and several defamation cases being filed against digital news publishers for reporting news unpalatable to the ruling party. Since the purview of the IT Act, 2000, does not extend to the news media, the new guidelines do not have the legislative backing to regulate the media. Also, the oversight mechanism being created for social media and OTT players has the potential for unhindered censorship because the proposed inter-ministerial committee, comprising bureaucrats, will have a final say on matters like removal of content, issuance of an apology and changing the rating of the content. This amounts to blatant censorship.

The new rules also stipulate that intermediaries like WhatsApp must identify the first originator of messages, deemed mischievous by the government, and pull down the unlawful content within 36 hours of it being flagged while the streaming services like Netflix and YouTube must self-regulate and classify content in categories according to age. However, it must be pointed out that tracing originators could be susceptible to falsification and also to breaking encryption. In the past, WhatsApp had expressed its inability to provide traceability of messages saying it amounts to breaking encryption. Recently, Twitter had complied only partly with the Centre’s directives to block several Twitter handles. The Intermediaries Rules have far-reaching consequences on online privacy, freedom of speech and expression, in addition to the constitutional issues they raise. While there is a strong case for standardisation of a sector that has witnessed exponential growth in recent times, the stifling regulation is no answer. A pragmatic and balanced approach is needed to monitor the content. In a technology-driven industry, the job of any regulator is to ensure a level-playing field and not to impede growth and stifle creativity.

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