Recent media reports note that the Supreme Court has observed that the new OTT (over the top technology) rules have no teeth, going on to add that some platforms even show pornography in the absence of effective oversight.
It has, therefore, directed the government to present rules that are more effective.
One expected that the Indian governments counsel would mention Section 67 of the Information Technology (IT) Act imposes severe punishment in such cases and that the teeth of the new Information Technology (Intermediary Guidelines and Digital Media Ethics) Rules, 2021 are actually embedded in the mother law. Besides, as milords know better than us, the Indian Penal Code also provides for rigorous imprisonment of several years for offences that involve circulation, distribution or public exhibition of obscene materials.
On the other hand, the consensus that had emerged in the media is that the new rules are far too intrusive and may seriously constrict freedom of speech and expression. Besides, many are not convinced that the government has adequate competence to operationalise such wide-ranging controls by invoking bits and pieces of powers under Sections 69(2), 79(2), 87(1) and 8(2) of the IT Act.
For quite some time, however, there were speculations about what new restrictions were cooking in the governments kitchen for OTT platforms and digital media. Keen observers did not fail to note when the Central government quietly amended the Allocation of Business Rules in November 2020 and slipped in online content providers and digital online media as new subjects that would henceforth be under the information and broadcasting ministry.
There was hardly any reaction then, as few could fathom the implications of such terse bureaucratese, lost as it is meant to be under other trivia. Again, it is doubtful whether the Constitution actually confers such sweeping powers on this ministry just because these two new entries are entered in the second schedule of the constitution to supplement the three miserly entries that already existed. The government has, nevertheless, flexed its muscles and through the new rules displays a hegemonic overreach that is so characteristic of the aggressive regime. But even the regimes former attorney general feels the social media rules are hasty, which is quite resounding an indictment. And now, it is apprehended that the government may take advantage of the courts interim order to make the entire regulation even more constricting, just because one small part was deemed to be unsatisfactory.
Also read: Why the New IT Rules Beg Urgent Judicial Review
Let us be clear that the new rules actually cover three distinct sectors of the digital media that are quite unlike each other but all of them operate mainly through cloud storage, not via fibre cables or towers. Hence, they are popularly known as over the top technologies or OTT. But each is quite distinct and each needs to be viewed sui generis.
The first area covered is social media that functions through platforms like WhatsApp, Twitter and Instagram. They are intermediaries, not content creators, as they simply facilitate communication services between individual users.
The second zone governed by the rules consists of online curated content like web serials, movies and the like that are directly beamed into TV sets and other devices, without belonging to any TV bouquet. Players like Voot, Disney+, Netflix, Amazon Prime and Hotstar fall in this genre and they are surely a serious challenge to regular film producers and to movie theatres.
The third sector is digital online news that has presented new dimensions to the journalism industry and has prompted legacy media organisations to offer digital versions as well. Though this digital segment of the originally-print media has duly expressed its alarm, the regimes main targets are the originally-digital news services like Firstpost, The Wire, Scroll and The Quint. They have stood up, quite impudently, and could not be tamed or overawed or tightened like the mainstream media.
The first OTT sector, social media, has suddenly grown too big for the regime to live and let live. The WhatsApp messaging service, for instance, is now used by 53 crore Indians, which is more than half the hundred crore we have above the age of 14 years. True, terrorists and drug-dealers are known to be exploiting it, but reports indicate that the government allegedly uses exclusive spy software like Pegasus to crack such critical matters. No one can grudge special surveillance to combat espionage, terrorism, drugs, sex and dangerous operations.
The new rule 3(1)(b) directs social media platforms to exercise due diligence and filter, edit or block materials that are defamatory, obscene, pornographic, paedophilic, libellous. Fair enough, but these same offences are also punishable under existing laws and such rules only appear to enforce cooperation with authorities. At the same time, everyone knows that WhatsApp and similar safe messaging services actually offer a much-needed shelter to millions of common citizens who are paranoid about big brothers constantly roving eyes and need end-to-end encryption to speak their minds even in a democracy.
But it is also the same WhatsApp that is extensively and successfully utilised by hate groups to spread fake news. Rule 3(1)(b)(x) now prohibits false news, but the governments track record of inaction against them is scandalous. Crusading platforms have, therefore, come up like Check4Spam, AltNews and SM Hoax Slayer that bust some (not all) fake news, with convincing proof. It is, however, quite utopian to expect a regime that thrives on fake and exaggerated news and on hatred to act against these organised factories and depraved individuals who produce such poison. What babus feel about collaborating with the regimes skewed and perverse emphasis is, however, a matter left to their conscience.
Also read: A Mala Fide Attempt to Control Independent Digital Media
It is not only WhatsApp but other more public intermediaries like Facebook, Instagram and Twitter that are now yanked in by the long arm of the new law. After all, Facebook has 41 crore users and Instagram 21 crore numbers that are mind-boggling. Twitter has less than 2 crore users, but it has metamorphosed in the recent past into a more-than-official international notice-board on which political and opinion leaders pin their views, musings and provocations.
Under rule 3(1)(d), the government can now direct these platforms to remove offending materials within 36 hours and take other severe actions. Rule 4(2) is even more powerful as the government can demand to know the identity of originators of news that can incite serious offences relating to the security and sovereignty of the country. Such curiosity has, however, never been expressed when marauding gangs of right-wing trolls constantly and openly terrorise dissenters on social media platforms like Twitter, with impunity and immunity.
It is quite likely, therefore, that the governments new powers may be used only against its opponents. In fact, the government had actually interjected several times before the Supreme Court during its hearing on the Sudarshan TVs UPSC Jihad programme, to convince it that it was really the digital media that needed more checks than toxic television. But, the court did not agree then.
The second major category covered under the rules is online curated content basically, films and web serials that are streamed through OTT, rather than by dish or cable. Since direct blocking and chopping of such entertainment content may excite public controversy, the rules incorporate a strategy that this regime has perfected of utilising proxy complaints to harass opponents. After its runaway success in outsourcing violence to vigilante groups, it discovered that it was easier to outsource the business of tormenting defiant voices through hyper-sensitive proxies. These are ideologically in total sync with the regime and pounce on liberals and perceived heretics. They file criminal cases and FIRs, claiming that their religious or cultural sentiments have been hurt and the police as well as several magistrates appear quite willing to throw the book at dissenters.
Why the third sector, online news and current affairs, is bundled with the second, i.e, OTT films and serials, under Part III is not clear as the two belong to separate worlds and are as different from each other as chalk is from cheese.
Now that the court has directed that OTT films and serials be controlled more severely, online news could also be hurt, just because it is thrown into the same bed. An elaborate code of ethics has been brought in though an appendix, that has just a few words for online news, basically directing them to follow the Press Councils code for journalists and the Programme Code under the Cable Television Act. It then devotes the rest of the longish code to online curated content and give us a classic example of unfettered and convoluted administrative thinking. Content is sliced into five neat categories according to age of viewers, namely, universal, adults, under 7 years, above 13 years and above 16 years. The last three are to be done under parental guidance but no one clarifies how and whether children would have to produce age certificates to open TVs or smartphones.
Part II D of the code then throws up its hands and declares that the publisher of such audiovisual material shall take all efforts to restrict access to such content by a child through the implementation of appropriate access control measures. Voila. The code hardly appreciates that many under-13 have access to computer and mobile devices, more so after online education became mandatory. Additional guidelines follow, on what is appropriate and what is not, and promises to confuse the creative world even more.
Let us finally move on to the new three-tier system of addressing grievances real, imagined or regime-sponsored. At the first level, publishers of films/serials and news/current affairs are ordered to appoint their Grievance Officers, who are duty bound under rule 11(2)(c ), to take a decision on every grievance received by it within fifteen days, and communicate the same to the complainant within the specified time. It looks eminently possible for regime-proxies to file countless grievances on matters that annoy the government and overwhelm this first level of grievance disposal. If the aggrieved party is not satisfied, he can appeal to the next level, namely, the self regulating body that has to be set by the industry association(s) under rule 12. It has to be headed by a retired judge of the Supreme or High Court or an independent eminent person, which could ring even more bells. He would have six expert members and the body has to ensure that the publishers of online news and OTT audiovisual materials abide by the rules and the code.
Also read: New IT Rules: The Great Stretching of Due Diligence Requirements Under Section 79
While disposing grievances or appeals, this self-regulating body can, under rule 12(3), warn, censure, admonish or demand apology or disclaimer and also wield its surgical knife, rather painfully. In case the publisher does not abide by this advisory or the matter warrants serious action under section 69A of the IT Act, the self regulatory body will refer it to the third and final tier of grievance disposal, which is governments oversight mechanism.
In effect, however, this high sounding term boils down to an inter-departmental committee, representing at the minimum seven different ministries, chaired by a joint secretary level officer who is appointed as the authorised officer. It is not necessary for the eight junior or middle ranking officials to understand the finer issues of media for they will surely be given instructions by their political masters. Rule 14(2) actually authorises this bunch of bureaucrats, as the body will surely be branded, to process or decide on issues referred to it and on matters decided by the body headed by retired Supreme Court or High Court judges.
Once it takes a call, it can recommend whether a creative work or an online news item is to be punished. The ministry will then take a call on the recommendation. Such a system may enable a single aggrieved person to effectively torpedo a digital media production.
Like all impatient and intolerant regimes, this one will operate through a hatchet-man, its most trusted authorised officer. Under Rule 15, he can, after approval from the secretary, direct the publisher, any agency of the Government or any intermediary..to delete or modify or block the relevant content and information generated, transmitted, received, stored or hosted in their computer resource for public access. These could well be fangs that are capable of tearing apart online news publishers and OTT film/serial distributors, mainly to drive the international segment out and replace them with more regime-friendly desi ones.
This new overkill for OTT films and online digital news surpasses all controls prescribed earlier by preceding governments for other media like print, television and film. Surprisingly, not many have perhaps understood the actual import of the much-touted soft self-regulation that was sold so glibly by two adept practitioners of the art of double-speak. Besides, government has also to understand that much of the OTT controls can easily be bypassed through VPN, Virtual Private Networks. They operate encrypted tunnels for transferring data to host sites located anywhere in the world, which effectively avoids governmental geo-restrictions and surveillance. Then, torrenting can also secure unbelievable treasure-chests of audiovisual materials, with or without VPN, well beyond rules and controls. Like drugs, pornography is too massive and too multi-billion dollar an international racket to bother much about local pea-shots.
At the end, we may do well to remember that, unlike Abrahamic religions, Hinduism has no provision for blasphemy. By legitimising vague concepts of hurt and insult to religion, we damage the core of Hindu tolerance. It is its flexibility and accommodation that historically accounted for the religions strength, resilience and longevity. Any short-sighted hardening of attitudes by copycat fundamentalists will surely cause irreparable harm in just a few years to the very architecture of a civilisation that has withstood different challenges for so many millennia. And also realise that dissent is not fun, but risky and arduous. But then, the copybook orderliness that orthodoxies and autocracies impose invariably blocks human progress which is simply not possible without question, debate, counter-opinion and experimentation.
Jawhar Sircaris a former culture secretary, Government of India. He tweets at@jawharsircar.
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The New IT Rules Are a Hodgepodge of Hamfisted Regulations - The Wire