In the face of growing concerns about global disinformation and inappropriate content in India, the 2021 Information Technology Rules (Intermediate Guidelines and Code of Ethics for Digital Media) have been released by the central government. The 2021 rules focus on the self-regulation of publishers of news media and organized content, and provide a code of ethics to guide their conduct.
All publishers of news and organized content media are required to register with the Ministry of Information and Broadcasting and appoint a grievance officer, resolve complaints within 15 days, and post updates. monthly day on complaints received. Notably, the definition of news media publishers in the 2021 Rules is worded broadly and too broadly. The definition includes different media at varying scales, such as online local news portals run by individuals, news portals dealing exclusively with sports news, and the online presence of established media, resulting in obligations expensive even on news portals with a small readership and creating operational difficulties.
Three-level self-regulation model
Complaints to the Grievance Officer are the first level of the three-level self-regulatory model. The second level of self-regulation is review by a self-regulatory body. Each publisher must become a member of a self-regulatory body headed by a retired Supreme Court or High Court judge or an independent eminent person from a relevant field. The body can issue recommendations and ensure compliance with the Code of Ethics. Curiously, no express provision has been made for (i) that publishers can appeal against any recommendation of the body and (ii) to resolve any dissent within the self-regulatory body when issuing recommendations.
The third level of self-regulation involves oversight by the central government. In fact, the central government has a role even at the second level as each self-regulatory body has to be registered with the IB ministry. The registration itself will be based on a careful review of its constitution and alignment with the Code of Ethics. If the self-regulatory body fails to ensure compliance, at the third level, the central government retains broad oversight powers through the inter-departmental committee to hear complaints or referrals.
This model of self-regulation is not the first of its kind. Even Australia has set up self-regulation by a voluntary peer body for online content. However, the involvement of the central government in the self-regulation model is an aspect unique to India. The involvement of the central government and the ambiguities of the 2021 rules and code of ethics underscore the key issue plaguing it – the possible crippling effect on media freedom of expression.
The 2021 rules came into effect after a recent controversy over allegedly inappropriate content in a web series on a platform. In this case, even the head of the platform was involved in legal proceedings. The standard for classifying content organized online in the 2021 Rules is ambiguous. The practicality of the requirement to verify the age of viewers of content organized online has not yet been tested. This is a matter of concern which will require developments in case law as well as in technology. This, together with the extensive powers of reprimand, request for content modification, etc., can discourage the creative freedoms of artists.
Another interesting addition is the power to order the deletion or modification, as the case may be for one or more specific content elements, either on the recommendation of an interdepartmental committee, or in an emergency with the approval of the secretary of the IB ministry. These powers are in addition to the 2009 Information Technology Regulation (procedure and guarantees for blocking access to information by the public) (or “Blocking Rules”). The emergency blocking procedure under Part III of the 2021 rules deviates significantly from the blocking rules. Indeed, it does not provide the procedural guarantee of a possibility of being heard a posteriori in the event of an emergency blockage.
Transparency and accountability
However, it should be noted that unlike the blocking rules, there is no confidentiality requirement with respect to proceedings under Part III of the 2021 Rules. This is a welcome development. because it instills transparency and accountability in the exercise of powers relating to the removal of content.
Finally, the 2021 Rules have been the most widely criticized for being published without any public consultation. In fact, the Information Technology Act 2000 (Information Technology Act) does not contain any provision dealing with the governance of publishers of news media and organized content. Several motions have been filed to challenge Part III of the 2021 rules as ultra vires. As such, Part III of the 2021 Rules has no connection with the purpose and regime of the parent law, i.e. the Information Technology Law.
This aspect deserves judicial review. If implemented in its current form, the exercise of broad jurisdictional powers by a self-regulatory body and an inter-ministerial committee will have a lasting impact on artistic freedom and digital information in the years to come. It will be interesting to see if the self-regulation model with central government intervention results in self-censorship on the part of publishers.
(The author is a partner, Phoenix Legal, a law firm)