The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, announced on February 25, establish a soft-touch, progressive institutional mechanism with a level playing field featuring a code of ethics and a three-tier grievance redressal framework for digital news publishers and OTT platforms.
The latter would be required to self-classify their content into five age-based categories — U (Universal), U/A 7+, U/A 13+, U/A 16+, and A (Adult). They 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”. Publishers of news on digital media would be required to observe the Norms of Journalistic Conduct of the Press Council of India and the programme code under the Cable Television Networks Regulation) Act, thereby providing a level playing field between the offline (print and television) and digital media.
However, some sceptics have described these rules as curbing freedom of expression and have even termed them as dictatorial. They seem to be looking for a black cat in a dark room where none exists.
Let us take the issue of content on OTT platforms. In fact, for the first time in independent India, there is a policy shift from pre-certification or censorship to a more transparent system of self-classification in five different age groups. Consider OTT classification in different countries: In Singapore, the Infocomm Media Development Authority (IMDA), established under the Broadcasting Act, 1994, is the common media regulatory body for different media. The country has adopted a licencing model where service providers are required to obtain a licence for operation. A content code for OTT, video-on-demand and niche services is in effect from March 1, 2018, and provides, inter alia, for classification of content, parental lock and age verification, display of rating and content elements and specific provisions for news, current affairs and educational programmes. To aid parental guidance and allow for informed viewing choices, all content in Singapore must be rated according to the Film Classification Guidelines. The six ratings are G (general), PG (parental guidance), PG13 (parental guidance for children below 13 years), NC16 (no children below 16 years), M18 (mature 18, for persons of 18 years and above) and R21(restricted to persons of 21 years and above)
In Australia, online media is regulated through the Broadcasting Services Act, 1992, read together with the Enhancing Online Safety Act 2015. For matters related to online safety (including digital media), the office of the eSafety Commissioner is the regulatory authority. The Broadcasting Services Act, 1992 has provisions for classification of content, restricted access to certain kinds of content, industry codes and industry standards, complaint mechanism, etc. However, in Australia, classifications are advisory categories. This means there are no legal restrictions regarding viewing and/or playing these categories — general (G), parental guidance (PG) and mature (M).
In the United Kingdom, the Office of Communications (Ofcom) and the Communications Act, 2003 regulate the communications landscape. The UK Government released a white paper on the threats posed by unregulated online content. The paper has proposed a new independent regulator to ensure online safety; develop codes of practice, impose liabilities/fines on companies, and coordinate with law enforcement agencies.
Thus, self-classification of OTT content is accepted in many countries and there is no question of censorship being imposed on these platforms. The move is to shift to self-classification by creative people themselves.
Another issue being raised is that these platforms have very little role in the grievance redressal mechanism. One digital media entity even alleged that the judges on the self-regulation body will be selected from a panel approved by the government. Let us see what Section 12(2) of the new Rule says on self-regulation: “Section 12(2) — The self-regulatory body referred to in sub-rule (1) shall be headed by a retired judge of the Supreme Court, a High Court, or an independent eminent person from the field of media, broadcasting, entertainment, child rights, human rights or such other relevant field, and have other members, not exceeding six, being experts from the field of media, broadcasting, entertainment, child rights, human rights and such other relevant fields.”
Nowhere does the rule talk about any government interference in tier 1 or tier 2 of the self-regulation mechanism, and tier 2 of the self-regulatory body is to be formed by the OTT platforms themselves.
The third issue being raised relates to the lack of consultation with OTT platforms. The I&B minister had himself met representatives of OTT platforms on March 2 in Delhi. Earlier, the ministry had organised consultations with the platforms on November 10, 2019, in Mumbai and on November 11, 2019, in Chennai. OTT platforms have been having discussions with the ministry for a long time but they must realise that consultation does not mean concurrence.
As regards digital news portals, the requirement placed on them is to follow the established journalistic codes. They also have to ensure that prohibited content, such as child pornography, is not transmitted. How does a code of conduct amount to curbing the freedom of expression? Digital news portals should introspect on why they did not develop their own code for so long.
Another requirement being placed on digital news portals is regarding the furnishing of basic information and the grievance redressal mechanism. It is surprising that many portals, particularly at the state/district level, do not wish to give common citizens any opportunity to email them, in case they have a grievance. It is quite surprising that those who talk about transparency are non-transparent in their own actions.
Some senior journalists have also raised misgivings regarding Rule 16 under Part III of the rules, which says that in an emergency situation, interim blocking directions may be issued by the secretary, Ministry of Information and Broadcasting. This is exactly the same provision being used by the secretary, Ministry of Electronics and Information Technology for the past 11 years under the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009.
Part III of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, would be administered by the Ministry of Information & Broadcasting. That is the reason the reference to the MeitY secretary has been replaced by secretary, Ministry of Information & Broadcasting and no new provision has been made. This provision is made for emergency situations and has to be ratified within 48 hours. For example, if a wrong map of India is being depicted then should we wait for a “grievance” to be filed? Should we not take immediate action to take it down?
Thus, the apprehensions being expressed by sceptics seem groundless. Let all those who are searching for “something in the dark room” open the doors and windows to allow in some light; the search would become easier.
This article first appeared in the print edition on March 8, 2021 under the title ‘A black cat in dark room’. The writer is, secretary, Ministry of Information & Broadcasting and Department Of Higher Education
As regards digital news portals, the requirement placed on them is to follow the established journalistic codes. (Illustration by C R Sasikumar) 
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