In a year when the world was in chaos and our lives came to an abrupt standstill, many of us sought refuge in the arms of the World Wide Web and all it has to offer. Social media platforms like WhatsApp, Twitter, Instagram and Facebook replaced all human interaction; many hours were wasted on the goldmine of creative content available on Netflix, Amazon and Hotstar; meanwhile digital news services like The Wire, Firstpost, Scroll and others kept us updated on the happenings of the world. These digital services, commonly referred to as OTT (Over The Top) technologies, operate mainly through ‘cloud storage’, not via fibre cables or towers and remained outside the purview of regulation for long. However, with their reach and popularity growing manifold during the pandemic, it was but inevitable that the government tried to reign in this unpredictable dark horse. The Ministry of information and Broadcast (MIB) had in the past year stressed for the same and held consultations with several stakeholders.
Several controversies and court cases have been haunting shows like The Suitable Boy wherein a kissing scene between a Hindu girl and a Muslim boy in a temple has been criticised on grounds of obscenity, hurting of religious sentiments, alleged claims of promoting ‘love- etc. Most recently, the show Tandav became the target of huge public and political outcry for showing Hindu Gods in a ‘bad light’,the use of casteist slurs, inciting communal disharmony etc. with several FIRs being lodged in different states against the actors and makers of the show and even Amazon’s India head of original content Aparna Purohit. Matters escalated to a point that demands to ban the show were being actively made and Director Ali Abbas Zafar had to issue an unconditional apology on social media, stating that they did not intend to hurt any one’s feelings or sentiments and the scenes in question were edited after discussing the issue with the Ministry of Information and Broadcasting. Therefore, in this age of outrage, where anything and everything can and is viewed as offensive by different sections of the people and dissenting and different opinions are often ostracised by the majority voices, the pressure to regulate these platforms has been mounting for quite some time.
It was this backdrop of public outrage and increased pressure for regulation, both from the people and the Supreme Court that provided the government the perfect opportunity to then introduce the new Information Technology (Intermediary Guidelines and Digital Media Ethics) Rules, 2021 on February 26. The government has claimed such regulation is necessary, a more “soft-touch regulation” and an attempt to “level the playing field”.
WHAT ARE THE NEW OTT RULES?
The new rules bring the OTT platforms under the ambit of the Ministry of Information and Broadcasting. Hence, the government can now direct these platforms to remove ‘offending’ materials within 36 hours and take other severe actions and demand the identity of ‘originators’ of news deemed threatening security, sovereignty of the country etc. A Code of Ethics and Procedure and Safeguards in Relation To Digital/Online Media has also been put in place wherein Journalistic Conduct of the Press Council of India and the Programme Code under Cable TV Networks Regulation Act has to now be followed and guidelines for classification of content based on viewer’s age, themes, content, tone and impact, and target audience have been set out. Content rating categories have been divided into “U”, U/A 7+ , U/A 13+ , U/A 16+ and ‘A’ with the onus of deploying access control mechanisms for U/A 13+ or higher on these OTT Platforms. Another crucial point is the three-tier grievance redressal mechanism- the first level comprising of regulation by the OTT Platform itself through a grievance officer; the second level an institutional self-regulatory body formed by publishers of content and their associations, comprising industry experts headed by a retired Supreme Court/ High Court judge /eminent personality in the relevant field; and at the third level an inter-department committee constituted by the MIB that will provide oversight and hear appeals for decisions taken at level two or if a complaint is referred to the inter-department committee by MIB.
These rules have come under heavy criticism for a multitude of reasons ranging from questions about the government’s decision to push them through the route of delegated legislation rather than parliamentary legislation and whether such changes are within the ambit of the IT Act, to concerns regarding the Emergency clause in the Act. Moreover, the efficacy of the three-tier system has been questioned because in the end, registration of the self-regulatory body is subject to MIB’s satisfaction and second the inter-department committee at level three may hear complaints referred to it by the MIB effectively skipping the first two levels of self-regulation. The rules do not provide for specific grounds on which complaints can be made, and given the subjective nature of the content and diverse sensibilities of viewers, there are likely to be a multitude of complaints, thereby leaving content creators in a dilemma- how to balance varied social sensibilities with meeting demands from a wide audience base while also retaining their creative spirit without any fear. Moreover, concerns about encrypted messaging apps’ need to collect more user data to trace messages back to the first originator and the fear of censorship of online news has been prominent.
At the heart of the issue is the concern for the Constitutional Fundamental Right of Freedom of Speech and Expression guaranteed under article 19(1)(a) to every citizen of India and what exactly does the “reasonable restrictions” doctrine curtail. In a time when censorship of any kind has increasingly been questioned, as seen during the uproar surrounding films like Udta Punjab and Padmaavat, these OTT platforms were an avenue, a safe haven for creators and audiences alike to partake in the content of their choice unafraid of any limits to their expression. At a time when mainstream news proves to be increasingly polarised at every turn, many youngsters have turned to these digital news platforms to seek greater clarity. End-to-end encryption has been the solace behind which the everyday citizen feels comfortable expressing his views. With these safety nets now being compromised, the new IT and OTT rules then threaten to impose a surveillance state where everyone who dares to disagree lives under the constant fear of being targeted and punished. With the Supreme Court recently asking for more ‘teeth’ to these rules and the severity of implementation and changes yet to be seen, a great deal of uncertainty mixed with equal amounts of outrage and fear have been fuelling the response of these new IT Rules. The government on its part has tried to allay the fears of the people and emphasised on the “soft-touch” nature of the rules but this debate about the extent of Freedom of Speech and the validity of its restriction remains unanswered like always before.
