Govt examines if new legal framework is needed to regulate digital platforms

It has told the Standing Committee on Communications and Information Technology — headed by BJP MP Nishikant Dubey — that while certain provisions exist under the current laws, there is a growing demand for a stricter and effective legal framework to regulate such harmful content. “This ministry has taken note of these developments and is in the process of examining current statutory provisions and the need for a new legal framework,” it said.

Less than 10 days ago, the committee had asked the I&B Ministry on February 13 regarding the amendments needed in the existing laws to clamp down controversial content in the wake of the emergence of new technology and media platforms. The panel had specifically raised the issue surrounding Allahbadia during a meeting last week where I&B Secretary Sanjay Jaju was also present.

After the meeting, the committee wrote to the Ministry of Electronics and Information Technology’s secretary S Krishnan over the issue. “In light of the above and growing incidents of misuse of digital and social media platforms, the Ministry of Electronics and IT is requested to send a brief note to this committee on the efficacy of existing laws to deal with such cases and the need to amend the existing laws/IT Act, 2000, in order to bring such platforms under legal scrutiny,” the letter read.

In a February 20 office memorandum addressed to the Lok Sabha Secretariat, the I&B ministry has said many high courts and the Supreme Court, MPs and statutory bodies like the National Commission of Women have spoken on the issue. A day before writing to the Parliamentary panel, the ministry had also asked OTT (over-the-top) media platforms to adhere to age-based classification of content and ensure self-regulation.

The ministry had just three days ago on February 19 asked social media channels and OTT platforms to follow the Code of Ethics prescribed in the IT Rules 2021 and implement “access control for A-rated content” to prevent children from consuming inappropriate material. It emphasised that the law requires OTT platforms to “not transmit any content which is prohibited by law (and) undertake age-based classification of content” and cited “the provisions of the Indecent Representation of Women Act, 1986, Bhartiya Nyaya Sanhita (BNS), 2023, Protection of Children from Sexual Offences (POCSO) Act, and Information Technology (IT) Act, 2000, wherein publication of obscene/pornographic content is a punishable offence”.

While the Supreme Court granted Allahbadia protection from arrest, it also came down heavily on him for his comments during ‘India’s Got Latent’ programme and asked the Centre if it was planning to take steps to regulate “obscene” content online.

The court also said it would not “leave a vacuum” and take action if needed. “Union of India is a party… We would like to do something. The Government of India will willingly do it; we will be very happy. Otherwise, we are not going to leave this vacuum. The way it is being misused by so-called YouTube channels… we have issued notice…,” the court said.

After the court’s questions to the Centre, the parliamentary panel asked the Ministry of Electronics and Information Technology to submit a note on the efficacy of existing laws in dealing with such cases and suggest amendments to bring online platforms under legal scrutiny. The I&B ministry, on its part, told the committee it will submit a detailed note after due deliberations.

Under Part III of the Intermediary Guidelines and Digital Media Ethics Code (IT Rules, 2021), online streaming platforms are required to implement a three-level grievance redressal mechanism for violations of the Code of Ethics. This Code also prohibits platforms from transmitting unlawful content, mandates age-based classification, and restricts access to ‘A’-rated content for children.

However, the rule requiring the creation of the three-tier grievance redressal mechanism – which involves self regulation at the platforms’ level, industry-wide self regulation, and an oversight mechanism by the government – has been stayed by the Bombay High Court and Madras High Court. The Kerala High Court has also restrained coercive action over non-compliance with Part III of the IT Rules. More than 15 petitions have been filed against these rules, and in 2021, the Centre approached the Supreme Court, seeking to transfer all challenges to the top court to avoid “divergent judicial views.” The Supreme Court has since transferred those petitions to the Delhi High Court, where hearing is currently ongoing.

Also, while YouTube is governed under the digital media and ethics code of the IT Rules, the provisions can only apply to content curated by the platform. For content uploaded to an individual’s channel, YouTube will not be treated as a publisher, but rather as a social media intermediary – since such content falls under the purview of user generated content – and can not be held liable for it as long as it adheres to certain government directions, such as blocking content and other due diligence requirements.